United States v. City of Minneapolis, 1365.

• Decision Date: 04 November 1946
• Docket Number: No. 1365.,1365.
• Parties: UNITED STATES v. CITY OF MINNEAPOLIS.
• Court: U.S. District Court — District of Minnesota

68 F. Supp. 585

UNITED STATES v. CITY OF MINNEAPOLIS.

No. 1365.

District Court, D. Minnesota, Fourth Division.

November 4, 1946.

R. S. Wiggin, City Atty., and John T. O'Donnell, Asst. City Atty., both of Minneapolis, Minn., for defendant in support of said motion.

Victor E. Anderson, U. S. Atty., and T. H. Wangensteen, Asst. U. S. Atty., both of St. Paul, Minn., for plaintiff in opposition thereto.

NORDBYE, District Judge.

The motion for judgment is based on plaintiff's failure to allege in its complaint the service of a notice of claim for damages against the defendant City as provided in, and required by, Section 465.09, Minnesota Statutes 1945 and M.S.A. Plaintiff's claim is based on the alleged negligence of the defendant in failing, after notice, to turn off the city water in a building where plaintiff had certain wool stored, as a result of which the water in the pipes of the building froze and burst, flooding the building and damaging the Government's wool. Section 465.09 provides: "Every person who claims damages from any city, village, or borough for or on account of any loss or injury sustained by reason of any defect in any bridge, street, sidewalk, road, park, ferryboat, public works, or any grounds or places, or by reason of the negligence of any of its officers, agents, servants, or employees, shall cause to be presented to the common council or other governing body, within 30 days after the alleged loss or injury, a written notice, stating the time, place, and circumstances thereof, and the amount of compensation or other relief demanded. No action therefor shall be maintained unless such notice has been given; or if commenced within ten days thereafter or more than one year after the occurrence of the loss or injury."

It is admitted that no notice as provided by the statute was given by plaintiff and the complaint does not allege any compliance with the statute with reference to the notice required. Under the Minnesota decisions, the giving of notice as required by the statute is mandatory and a condition precedent to the institution of a suit against a city for damages based on the negligence of the city's officers, agents, servants or employees. In absence of such notice as the statute requires, an action will not lie against a city. The Minnesota cases have strictly enforced the terms of this statute. Szroka v. Northwestern Bell Tel. Co., 1927, 171 Minn. 57, 213 N.W. 557, 59 A.L.R. 404; Olson v. City of Virginia, 1941, 211 Minn. 64, 300 N.W. 42, 136 A.L.R. 1365; Freeman v. City of Minneapolis, 1945, 219 Minn. 202, 17 N.W.2d 364. But is the statute applicable to the United States of America in the present proceeding? The answer to this question requires a consideration of certain controlling principles.

I. Where the United States brings an action in its sovereign capacity and seeks to enforce a right solely in the public interest, it cannot be defeated in the enforcement of such right by a statute of limitations enacted by any State. Chesapeake & Delaware Canal Co. v. United States, 1919, 250 U.S. 123, 39 S.Ct. 407, 63 L.Ed. 889; United States v. State of Minnesota, 1926, 270 U.S. 181, 46 S.Ct. 298, 70 L.Ed. 539; Guaranty Trust Co. of New York v. United States, 1937, 304 U.S. 126, 58 S.Ct. 785, 82 L.Ed. 1224; Board of Commissioners of Jackson County v. United States, 1939, 308 U.S. 343, 60 S.Ct. 285, 84 L.Ed. 313; United States v. Miller, 8 Cir., 1928, 28 F.2d 846.

II. Section 465.09, Minnesota Statutes 1945 and M.S.A., is not an enactment which by itself gives rise to the right to sue a city for torts committed by it in its proprietary capacity. In other words, it is not a statute of creation, but rather of limitation. In Emmons v. City of Virginia, 1922, 152 Minn. 295, 299, 188 N. W. 561, 563, 29 A.L.R. 860, the Minnesota Supreme Court stated with reference to Chapter 391 of the Laws of 1913, a forerunner of the present statute, and which statute, the plaintiff therein contended, indicated an intent on the part of the Legislature to subject municipalities to liability for injuries arising by reason of negligence in the maintenance of parks and playgrounds, "No new right of action is therein sought to be created. It merely deals with notice of injury to the municipalities before suit may be maintained." There is no statute in the State of Minnesota which creates any liability on the part of a city for the tort in question. Any liability which exists here arises under the common law. Under the common law, a city is responsible for its torts when acting in a proprietary capacity. Bailey v. Mayor of New York, 1842, 3 Hill, 531, 38 Am.Dec. 669; 6 McQuillin, Municipal Corporations, 2d Ed., §§ 2772, 2792, et seq.; Rochester White Lead Co. v. City of Rochester, 1850, 3 N.Y. 463, 53 Am.Dec. 316; the English case of Scott v. Mayor of Manchester, (1856) 1 H. & N. 59, aff'd 2 H. & N. 204; Snider v. City of St. Paul, 1892, 51 Minn. 466, 53 N.W. 763, 18 L.R.A. 151.

III. Where a city operates its water system...