137 N.W. 613 | N.D. | 1912
Lead Opinion
The issues presented on this-appeal arise on a demurrer to plaintiff’s complaint. The complaint; recites that the defendant is a municipal corporation; that plaintiff is the owner of certain property therein, consisting of two lots upon which “plaintiff had her residence, garden, lawn, well, trees, and other improvements, and where she lived and resided with her family. That during the summer and up to the 1st day of October, 1911, the defendant, the city of Enderlin, constructed, cut, kept up, and maintained a certain grade on the street in front-of said premises, which grade or street was constructed or graded to a height of from 5 to 6 feet higher than the grade to plaintiff’s said property, and causing a certain ditch on the side óf the street next adjoining-plaintiff’s property; and in the construction of said grade threw up and maintained and kept embankments along the center of said street from 5 to 6 feet higher than the grade of plaintiff’s property; and also-constructed and kept up upon streets adjacent to the plaintiff’s property several culverts and drains, by reason thereof the waters falling on the said adjacent property and on said grade were flown down and upon the property of the plaintiff, carrying mud, gravel, and debris, thereon, overflowing, injuring, polluting, and making unwholesome the plaintiff’s premises and destroying her trees, grass, and lawn, and occasioning great damage and loss in value of her property in the sum of $1,500.” Then follows a demand for judgment “for the abatement of said ditch, culverts, and embankments, and for her damages in the sum of $1,500.” To this complaint the city demurred on the grounds: (1) That said complaint does not state facts sufficient to constitute a cause of action; (2) that the court has no jurisdiction of the subject of the action, for the reason that the plaintiff fails to allege and plead the filing of a claim and abstract as provided in §§ 2703 and 2701 of the Revised Codes of 1905.
As the second ground of demurrer goes to the maintenance of the action, irrespective of the sufficiency of the complaint to state a cause
The question is whether these provisions of the statute apply to an action for damages brought by an abutting property owner for consequential damage resulting from flowage of waters which are, because of the construction of a street on the change of a grade in a street, thrown or precipitated upon, together with mud and debris, the abutting property. Do the provisions of §§ 2703 and 2704 have reference to claims for damage so arising ? From a casual reading of the statute, one might be lead to conclude that § 2704 in particular would cover claims of this kind and bar action against the city, unless, as therein provided, plaintiff “shall plead and prove the file of such claim and abstract,” required in § 2703; but we are convinced to the contrary, and that these statutory provisions have no reference to such damages as are sought in this case.
The statute was drawn with reference to claims against cities for damages arising from travel thereon, or the use of the streets by the public for the purposes to which they are as public streets dedicated and generally used, and claims founded upon some breach of duty on the part of the municipality in failing to maintain its streets in a fit condition for such public use. The statute reads: “All claims against cities for damages or injuries alleged to have arisen from the defective, unsafe, dangerous, or obstructed condition of any street, crosswalk, sidewalk, culvert, or bridge of any city, or from the negligence of the city authorities in respect to any such street, crosswalk, sidewalk, culvert, or bridge, shall, within thirty days from the happening of such injury, be filed in the office of the city auditor, signed and properly verified by the claimant, describing the time, place, cause, and extent of the damages or injury, and the amount of damages claimed therefor,” together with other provisions covering the case of inability of the complainant, because of injuries, to file such claim, and providing that then the time shall be extended, or that in case of death of the person injured the statement may be filed by any person having knowledge of the facts. Section 2704 provides: “No action shall be maintained against any city as aforesaid for injury to person or property, unless it appears that the claim for which the action was brought was filed in the office of the
As to whether the complaint states a cause of action, we conclude that it does not, and that on this ground it is subject to demurrer. It charges the maintenance during the summer and up to October 1st of a certain grade on-the street in front of plaintiff’s premises, and the causing of a certain ditch on the side of the street adjoining plaintiff’s property, and that in the construction of said grade certain embankments were thrown up, and that during said time certain culverts and drains were constructed and kept up upon streets “adjacent to plaintiff’s property;” and that by reason thereof surface waters were caused to flow upon plaintiff’s property to her damage described. It is to be noted all the damage is consequential only, and arises from the flowage of surface water, and upon this subject an irreconcilable conflict of authority exists; hence we refrain from any extended discussion of this question. The complaint, as we construe it, relates to matters wholly in the past, and to injuries that arose from the flowage of surface water during the construction of a street grade in front of plaintiff’s property. It is not charged that defendant city collected surface water and discharged it in one or more places upon plaintiff’s property, or diverted the natural flow of surface water to and upon plaintiff’s property, or increased the natural flow of water thereon by any act complained of. It does not plead facts establishing a nuisance or from which a nuisance must be inferred. No unauthorized or negligent acts or omissions on the part of the city or its officers are charged, nor are facts plead from which the same can be inferred. The complaint is most indefinite as to wherein any liability to plaintiff arose. And the pleader is dealing with a matter in which distinctions are many and closely drawn between liability and nonliability of municipal corporations to abutting property owners while a municipality is constructing public improvements, to which is added the complicated question of liability of the city to the abutting property owners for temporary or occasional flowage of surface waters during
The judgment of the trial court is affirmed, with costs. It is so ordered.
Concurrence Opinion
(concurring). I concur fully in that part of the foregoing opinion covered by the first paragraph of the syllabus, and concur in the holding that the complaint fails to state a cause of action. I, however, do not wish to be understood as having an opinion that the city might not be liable, if the facts were properly stated. In fact, I am of the opinion that a city is liable for damage done to property in the construction of public improvements like streets, or the raising of grades, and under any of many circunistances the turning of water on tó property. And in this case it is altogether probable that a complaint stating the facts fully would state a cause of action. However, in the complaint before us we are left to conjecture or inference as to the facts and the grounds of plaintiff’s injury, if any.