54 Minn. 279 | Minn. | 1893
The complaint herein alleged, as the gist of the action, that defendant city had laid a large water main or pipe in one of its public streets in so careless and negligent a manner, and had used such poor material and defective workmanship, as to cause it to leak, whereby great quantities of water had escaped, and, passing to land adjoining the street, caused plaintiff to be injured and damaged in a certain specified manner. A demurrer was interposed to this pleading on two grounds: First, that there was a defect of parties defendant; and, second, that facts sufficient to constitute a cause of action were not stated therein.
1. There was no defect of parties defendant. The complaint contains the positive averment that the main or pipe in question was laid by the defendant city. Now, it may be true, as argued by counsel for appellant city, that under the provisions of Sp. Laws 1885, ch. 110, and amendments thereto, the enactment thereof being alleged in the complaint, the city could not and did not lay the main or water pipe in question; that the power and authority so to do was conferred exclusively upon the board of water commissioners, and that under the terms of section 34 of said chapter this action should have been brought against that board, and cannot be maintained against the city; but this does not demonstrate that there was a defect of parties defendant. It may suggest the wrong defendant, and that with a proper answer the action against the present one cannot be successfully sustained.
2. There was no averment in the complaint that a written notice of plaintiff’s claims for damages had been served upon the mayor or city clerk, as prescribed and required by the charter, (Sp. Laws 1885, ch. 7, § 19,) and for this reason counsel claims there was a failure to state facts sufficient to constitute a cause of action. Section 19 has no applicability to a case of this character. The words, “any defect in the condition of any bridge, street, sidewalk, or thoroughfare,” refer to defects in such public ways or structures as such, and with
