Wilson v. St. Paul, Minneapolis & Manitoba Ry. Co.

• Decision Date: 10 June 1889
• Citation: 41 Minn. 56
• Parties: THORKILD WILSON <I>vs.</I> ST. PAUL, MINNEAPOLIS & MANITOBA RAILWAY COMPANY.
• Court: Minnesota Supreme Court

Page 56

41 Minn. 56

THORKILD WILSONvs.

ST. PAUL, MINNEAPOLIS & MANITOBA RAILWAY COMPANY.

Supreme Court of Minnesota.

June 10, 1889.

Appeal by defendant from an order of the district court for Ramsey county, Wilkin, J., presiding, refusing a new trial after verdict of $2,900 for plaintiff.

M. D. Grover, for appellant.

John W. Willis, for respondent.

GILFILLAN, C. J.

Block 1, Hopkins' addition to St. Paul, is bounded by Third, Fourth, Rosabel, and Broadway streets, and the surface of the entire block was, at the time of the acts complained of, several feet below the surface of the surrounding streets. The land was wet. On it were springs, the water from which seems, unless carried off by drains, to have spread over the surface of the block. The plaintiff was in possession, under a lease from the owner, of the north half of lot 5, which extended from Rosabel street across the block to Broadway. On the west end of the half-lot he had a building fronting on Rosabel street, and occupied by himself as a hotel; on the east end he had another building fronting on Broadway, and occupied by a tenant of his. For the purpose of keeping the water drained off his premises he had constructed two drains, — one on the half-lot running east, and venting into the sewer under Broadway; the other running south, across that part of the block lying south of his half-lot, and venting into the sewer under Third street. No serious question seems to be made of his right to have and maintain the former of these drains. As to the other, it appears that, several years before the acts complained of, the then owner of the land across which it runs gave plaintiff oral permission (there being no consideration for the permission) to construct and maintain it. Pursuant to such permission he constructed the drain, and maintained it until the time of the acts complained of. After its construction the then owner of the land conveyed it to George C. Squires, and he conveyed it to defendant. Defendant also took a conveyance of plaintiff's half-lot, subject to his leasehold interest. In the fall of 1886 the defendant made preparations to erect a large building on the land thus acquired by it, and, as alleged by plaintiff, and as his evidence tended to prove, for that purpose it dug trenches, drove piles, destroyed the two drains, entered upon and injured plaintiff's half-lot. As a consequence of destroying the drains, the water accumulated during the following winter on plaintiff's premises, and seriously injured the building occupied by him, and prevented his beneficial use of it. The main item of damage was that alleged to have been caused by so destroying the drains and causing the water to accumulate. The evidence indicates that the accumulation of water was mainly due to the destruction of the drain venting into the Third-street sewer. Hence the question of what liability was incurred by defendant by destroying that drain is important.

The plaintiff constructed and maintained that drain under a mere oral license from the owner of the land. Such a license is revocable at any time. This proposition follows necessarily from the law that interests in real estate cannot be created by parol. Such a license gives the licensee no right to continue doing what he is thus licensed to do, though, until revoked, it protects him from liability for acts done under it. To the rule that a parol license to enter on real estate is revocable there are some exceptions, though this case does not come within them. They save the right to the licensee, not to occupy...