Viebahn v. Board of County Commissioners of Crow Wing County
| Decision Date | 24 November 1905 |
| Docket Number | 14,442 - (82) |
| Parties | CHARLES D. VIEBAHN and Another v. BOARD OF COUNTY COMMISSIONERS OF CROW WING COUNTY |
| Court | Minnesota Supreme Court |
Action in the district court for Crow Wing county by plaintiffs owners of a line of steamboats operating upon a navigable river, to abate a public nuisance consisting of a closed bridge unlawfully erected by defendant across the stream. From an order, Spooner, J., sustaining a general demurrer to the complaint, plaintiffs appealed. Reversed.
Public Nuisance.
A private action may be maintained to redress injuries caused by a public nuisance, where the complaining party has thereby suffered some special damage not common to the general public, but in such cases only.
Right of Action.
A common nuisance in a public highway or navigable stream of water, which obstructs, interrupts, or prevents the continuance of a lawful business occupation existing and being conducted at the time of and before the creation of the nuisance, may be proceeded against by private action by the person who is thus interfered with in his vested rights.
Special Injury.
Plaintiffs had an established business and were engaged in operating a line of steamboats on the Mississippi river, a navigable stream, carrying passengers and freight for hire, and towing small craft from point to point on the river. Defendant wrongfully and without authority of law constructed, and insists on the right to maintain, a bridge over the river thereby obstructing and preventing plaintiffs from continuing in their said business; the bridge being so constructed as to prevent the passage of boats of the size of those operated by plaintiffs. It is held that the bridge constitutes a public nuisance, but that plaintiffs suffered an injury not common to the public at large, and may maintain an action for such damage as they suffered in consequence of the erection and maintenance of the bridge.
Liability of County.
The bridge complained of was constructed by the board of county commissioners of Crow Wing county without authority of law, in violation of an act of Congress prohibiting such structures over navigable streams, and without express authority from the county; but it is held, following Schussler v. Board of Co. Commrs. of Hennepin County, 67 Minn. 412, that the county, as an organized subdivision of the state, not having repudiated the ultra vires acts of its commissioners, is liable for damages caused thereby to the same extent as though originally authorized by it.
J. N. True, for appellants.
A. D. Polk, for respondent.
Appeal from order sustaining defendant's general demurrer to plaintiffs' complaint. The complaint alleges the following facts: Plaintiffs are copartners, doing business under the name of the Mississippi Transportation Company, and own and operate a line of steamboats plying between Grand Rapids and Brainerd on the Mississippi river, carrying for hire passengers and freight and towing other craft from point to point. That since 1900 their business as such has been extensive, remunerative, and prosperous. That they own and operate, in connection with their line of steamboats, warehouses at points along the river between Brainerd and Grand Rapids, their home port being at the village of Aitkin, and the value of property invested in their said enterprise amounts to the sum of $20,000. That in the spring of the year 1904, defendant, by and through its board of county commissioners, unlawfully, wilfully, and negligently constructed and erected, and has ever since maintained, an immovable bridge over and across said river at a point other than a town or village or landing place for boats, thereby effectually obstructing navigation upon the river and preventing plaintiffs from continuing their said business. That by reason of the construction and maintenance of said bridge the business of plaintiffs has been greatly depreciated and damaged. The facts are stated in the complaint in greater detail than here disclosed, but the foregoing is sufficient to present plaintiffs' grievance.
Two questions are involved on this appeal: (1) Whether the county as such is liable for the wrongful and unlawful acts of its commissioners in constructing and maintaining the bridge in question; and (2) whether plaintiffs have suffered any damage or injury not common to the public generally, sufficient to give rise to a cause of action in their favor.
The case was presented orally upon the sole question whether the facts stated in the complaint disclosed a special or peculiar damage to plaintiffs not common to the public, and the question whether the county, as an organized subdivision of the state, was liable for the alleged wrongful and unlawful acts of its board of county commissioners, was not referred to. Counsel for defendant evidently firmly believed that there could be no recovery in any event, and did not, therefore, raise this point. It occurred to the court that the question was at the threshold of the case, necessary to be determined, and additional briefs thereon were ordered. We adopted this course rather than take up the question and determine it without opportunity of counsel to be heard.
1. It appears from the allegations of the complaint that the acts of the board of county commissioners in constructing this bridge were not only beyond the power and authority of the county, but in express violation of sections 9, 10, and 11 of the act of Congress of March 3, 1899, 30 St. 1151, c. 425 [U.S. Comp. St. 1901, 3540, 3541] which prohibits the construction of any bridge or structure which will obstruct the navigation of public waters. It is elementary that a municipality is not liable for the torts of its officers committed outside the scope of their authority. The general rule is correctly stated by Judge Elliott, in his work on Municipal Corporations, as follows: "A municipal corporation is liable for the acts of its agents, injurious to others, when the act is in its nature lawful and authorized, but is done in an unlawful manner or in an unauthorized place, but it is not liable for injuries or tortious acts which are in their nature unlawful and prohibited." Elliott, Mun. Corp. § 302. If we were to follow that rule, which is supported by an unbroken line of authorities, the conclusion would necessarily be that the defendant county is not liable in this case, because the acts of the commissioners in constructing the bridge were not only not within the power and authority of the county, but expressly prohibited by law, and therefore wrongful and unlawful.
But it is urged by counsel for plaintiffs that, conceding the general rule of nonliability in such cases, defendant county in the case at bar, by not repudiating the acts of its officers, adopted the same as its own and is liable on the doctrine of ratification. Schussler v. Board of Co. Commrs. of Hennepin County, 67 Minn. 412, 70 N.W. 6, is cited in support of this contention.
The law is well settled that a municipal corporation, not being liable for the ultra vires acts of its officers, cannot make itself liable by ratification, except where it had power in the first instance, or at the time of the ratification, to authorize the acts. But in the case cited the court apparently applied the doctrine of ratification to the facts in that case, although it was clear that the county could not have authorized the acts there complained of. Without stopping to inquire whether that decision is at variance with the authorities, we adopt it as the law of this state in such cases, apply it to the case at bar, and hold that, inasmuch as defendant county did not, when the action was brought against it, repudiate the acts of its commissioners, and by its conduct insists on the right to maintain the bridge, it is liable to the same extent as though it originally authorized the acts and had power to do so. In that action the county, instead of pleading in its answer the want of authority of its officers to do the acts there complained of, asserted the lawfulness thereof, thereby adopting and approving their conduct. In the case at bar there was no repudiation of the unlawful acts of the commissioners, and by demurring to the complaint the county is in substantially the same position as the county was in the Schussler case.
2. The next question presents some difficulties, but after a careful examination of the authorities bearing upon the subject we conclude that the plaintiffs have suffered, as disclosed by the allegations of the complaint, an injury not suffered by the general public, and are entitled to recover. Plaintiffs had an established business and were engaged in operating a line of steamboats on the Mississippi river, and were obstructed and hindered in the continuance of the same by the wrongful and unlawful acts of the defendant in the erection of the bridge. The bridge obstructs navigation in general, in so far as steamboats of the size and character of those operated by plaintiffs are concerned, and necessarily damages and injures persons engaged in operating them. It amounts to a public nuisance, and the question presented is whether plaintiffs may maintain a private action for damages for its wrongful construction and maintenance. The authorities are by no means harmonious on this subject, in so far at least as the application of pertinent elementary principles to particular facts is concerned, and much confusion exists in the adjudicated cases. The general rule, upon which there is no conflict, is that a private action may be maintained to redress an injury of this character where the plaintiff has suffered some special or peculiar damage not common to the general public, and in such c...
To continue reading
Request your trial