Vill. of Pine City v. Munch

• Citation: 42 Minn. 342,44 N.W. 197
• Parties: VILLAGE OF PINE CITY v MUNCH ET AL.
• Decision Date: 14 January 1890
• Court: Supreme Court of Minnesota (US)

42 Minn. 342

44 N.W. 197

VILLAGE OF PINE CITYvMUNCH ET AL.

Supreme Court of Minnesota.

Jan. 14, 1890.

(Syllabus by the Court.)

1. Where a municipal corporation is, by its charter, authorized, by ordinances or by-laws, “to remove and abate any nuisance injurious to the public health,” and “to do all acts and make all regulations which may be necessary and expedient for the preservation of health or the suppression of disease,” it may, at its election, in cases falling within some recognized head of equity jurisdiction, resort to a court or equity to aid it in enforcing its public duties to preserve the public health of its inhabitants, and maintain in its own name an action to abate a public nuisance within its corporate limits affecting the public health of the municipality.

2. In order to justify a nuisance by legislative authority, it must be the natural and probable result of the act authorized, so that it may fairly be said to be covered by the legislation conferring the power. If the authorized act does not necessarily or naturally create a nuisance, but such result flows from a particular manner of doing the act, the legislative license is no defense.

Appeal from district court, Pine county; BROWN, Judge.

J. M. Gilman and W S. Moore, for appellants.

Gordon E. Cole, for respondent.

MITCHELL, J.

This is an action to restrain, by injunction, a public nuisance injuriously affecting the lives and health of the inhabitants of the village; and the principal question is the right of the plaintiff to maintain such an action. The appeal is from an order overruling a demurrer to the complaint. The nuisance complained of is that the defendants, (who have erected and maintained a dam across Snake river, within the corporate limits of the village, to accumulate water in a pond to aid in sluicing logs, and by means of which large tracts of flat land within the village are overflowed when the pond is full,) in the hot months of the summer, open the gates and sluices in the dam, and draw off nearly all the water in the pond, thereby converting these overflowed lands into marshes and swamps, when the mass of decaying vegetable matter with which the land is covered decomposes in the heat of the sun, filling the air with malaria and miasma, which causes wide-spread sickness and death among the inhabitants of the village. Part of the relief asked is that the defendants may be enjoined from so operating the dam as to draw off the water in the pond, and lay bare these submerged lands, at seasons injuriously affecting the public health of the village. The contention of the defendants is that an action to abate a public nuisance cannot be maintained by a private individual unless he sustains special injury different in kind from that suffered by the public at large, and that the plaintiff in this case stands upon the same footing as to this nuisance as a private person not sustaining any special injury, inasmuch as the village in its corporate capacity does not sustain any such injury. It is undoubted law that, except in the case of a private person sustaining injury special in kind, a bill to restrain art existing or threatened public nuisance by injunction will only lie at the suit of the state, or of some proper officer or body, as the authorized representative of the state. It must also be conceded that a municipal corporation has no control over nuisances within its corporate limits, except such as is conferred upon it by its charter or general laws.

But these propositions are not, in our judgment, decisive of this case. The plaintiff is a village incorporated under Sp. Laws 1881, c. 38. Chapter 4 of this act, which defines the general powers of the common council of the village, provides that they shall have authority, by ordinances, resolutions, or by-laws: “(25) To remove and abate any nuisance injurious to the public health;” “(27) To do all acts and make all regulations which may be necessary and expedient for the preservation of health or the suppression of disease.” And section 5 of chapter 4 of the act provides that “the powers conferred upon the council to provide for the abatement of any nuisance shall not bar or hinder suits,...