137 Minn. 349 | Minn. | 1917
This action was brought to recover damages for the alleged negligence of defendant in the repair of one of its highways, the result of which was to unnecessarily cast upon plaintiff’s land large quantities of surface waters which otherwise would not have reached his premises. Plaintiff had a verdict, and defendant appealed from an order denying a new trial.
Two questions are presented: (1) Whether the evidence supports the verdict; and (3) whether the court erred in denying defendant’s motion to dismiss the action for the alleged failure of plaintiff to comply with G. S. 1913, § 1199.
But if that be the proper view of the statute, a question we do not determine, it is clear that the answer of defendant in this case does not properly raise the question. It is not alleged that defendant was not afforded a sufficient opportunity to pass upon the claim. On the contrary, it appears from the answer that the town board had full notice of plaintiffs demand by a former action, which was dismissed, and for aught that appears may have been in session when the claim was filed (with the town clerk. At any rate by not specifically raising the question by the answer, and joining issue upon the merits of the claim, defendant waived the poiñt and cannot now complain.
Order affirmed.