24 Minn. 254 | Minn. | 1877
Under the issues, the situation and topography of the country immediately surrounding and including the premises in question, in its natural state, and at the time when the acts complained of were done, in reference to the flow of surface water, and the effect which the system of drainage adopted by the city, and the work done thereunder, had upon such flow, as respects the premises of plaintiff, were proper subjects of inquiry. The evidence, therefore, which was received on the trial under plaintiff’s objections, the admission of which is now assigned as error, was not objectionable. ■ The point made, that some of it was not pertinent on cross-examination, is no ground for setting' aside the verdict, inasmuch as this was a matter in the discretion of the trial court.
The principal questions presented, however, relate to the legal effect of the whole evidence, which is before us, and the correctness of the instructions given to the jury and excepted to by the plaintiff. The errors assigned are upon such instructions, and the rulings of the court in its charge to the jury, and that the verdict upon the evidence is contrary to law.
The general power of the city over its streets, under its charter, including the right to determine and establish the grades thereof, to make improvements in conformity therewith, and to adopt and prosecute a plan and system of drainage and sewerage, for the benefit of the ■ public, is unquestioned and conceded. Since, upon settled and familiar principles, all
In view of these considerations, it must be assumed that the jury rightfully found substantially the following facts, in proof of which there was sufficient competent evidence: Third street is crossed nearly at right angles by Nicollet street, Hennepin avenue, and First avenue south. Near the intersection of Third and Nicollet, and on a lot fronting upon the latter, the store building occupied by plaintiff was situated. The grade of these and other streets in that vicinity was legally established in 1870 and 1871. Prior to any improvements at the locality of the lot in question, and the intersection of Nicollet and Third streets, “there was, ” according to the testimony of some of the witnesses, “a natural depression from all sides,” the land being very low, so that portions of the year it was all under water, and “a pond” was formed, by the accumulation of surface waters, with no’ outlet. According to the natural topography of that section, the only feasible method for. draining it and getting rid of these surface waters, without excessive expense, was that adopted by the city. This was, to make an outlet of Third street towards First avenue south, so far as the nature of the ground would admit, by means of gutters constructed on either side, and in addition thereto two sewers were to be-constructed from Third street — one along Hennepin avenue,, the other along Nicollet — connecting with a main sewer on Washington avenue, with catch-basins and connecting pipes at the corners of the streets, in order to carry off whatever waters the gutters were insufficient to convey. In carrying out this system of street drainage it was necessary to estab
Upon this state of facts there was no liability against the
This case is entirely different from that of Kobs v. The City of Minneapolis, 22 Minn. 159, cited by appellant. There the injury was the direct result of a purely ministerial act, done carelessly and without any suitable precautions, whereby a large body of accumulated water was suddenly, and with destructive force, precipitated upon the premises of the defendant therein, to his injury. The facts of the two cases are as distinct as are the legal principles applicable to them.
Beferring to the specific exceptions taken to portions of the charge, the statement that “it did not appear that the gutters were really any less effective after the sewer was constructed than before there was a sewer,” in the sense intended and understood, as admitted by appellant, was upon the evidence literally true and open to no controversy. Its meaning, as thus understood and intended, was that the construction of the sewer had no effect to impair the efficiency of the gutters. The expression of this fact, thus apparent from the evidence, and open to no reasonable dispute, affords no legal ground for alleging error.
As to the drain cut by the street commissioner across Hennepin avenue, the court charged the jury that it was an act of the commissioner for which the city was responsible, and if they found any injury to plaintiff resulted from it, the defendant was liable. Whether this instruction was erroneous or not, plaintiff could avail himself of no objection to it, as it is evident the error, if any, was committed in his favor. None of the exceptions made were well taken, and the order denying a new trial is affirmed.