145 Minn. 129 | Minn. | 1920
The complaint alleged that the defendant, county of St. Louis, while engaged in clearing, opening and improving a county road, known as the Macon road, negligently set fire to certain inflammable brush and refuse, within the road, and negligently tended the fire, and that, as a result, the fire spread to plaintiff’s land adjacent to the road, and destroyed his buildings and their contents. Defendant demurred to the complaint on the ground that it failed to state a cause of action. The trial court sustained the demurrer. Plaintiff appeals.
Applying this principle, it has been held, that, in the laying out of highways, and keeping them in repair for the purpose of travel, the municipality is performing a governmental function or a duty which it owes to the public and is not liable to travelers, either for neglect to repair, Dosdall v. County of Olmstead, 30 Minn. 96, 14 N. W. 458, 44 Am. Rep. 185; Altnow v. Town of Sibley, 30 Minn. 186, 14 N. W. 877, 44 Am. Rep. 191, or for negligence in the manner of making repairs, as by, leaving an unguarded excavation in the highway, Weltsch v. Town of Stark, 65 Minn. 5, 67 N. W. 648, though a different rule has been made in ease of cities and villages. The distinction is wholly “artificial” and “not supported by legal reason or analogy.” 5 Thompson, Law of Neg. § 5822; Snider v. City of St. Paul, 51 Minn. 466, 472, 53 N. W. 763, 18 L.R.A. 151.
It is also held that, in the absence of constitutional or statutory provisions, a municipality is not liable for consequential injuries to adjacent property, resulting necessarily from the improvement of a highway, although it may result in substantial damage, as from increased flow of water upon adjacent land. Pye v. City of Mankato, 36 Minn. 373, 31 N. W. 863, 1 Am. St. 671; Lee v. City of Minneapolis, 22 Minn. 13; 5 Thompson, Law of Neg. § 5901.
On the other hand, it has been held that a county or town may not cause a positive trespass upon the lands of an adjacent proprietor. Pye v. City of Mankato, 36 Minn. 373, 31 N. W. 863. This is a breach of a duty owing; not to the public at large, but to the private owner; 5 Thompson, Law of Neg. § 5792. The liability has been frequently enforced in flowage cases, where the municipality, in the course of improvement of a highway, has collected surface waters in artificial channels, and cast them in destructive quantities upon private property. Nobs v. City of Minneapolis, 22 Minn. 159; Peters v. Town of Fergus Falls, 35 Minn. 549, 29 N. W. 586; Oftelie v. Town of Hammond, 78 Minn. 275, 80 N. W. 1123; Gunnerus v. Town of Spring Prairie, 91 Minn. 473, 98 N. W. 340, 974; Halvorson v. Town of Moranville, 137 Minn. 349,
3. The acts alleged in the complaint in this action would render a private owner liable, if done by him on his own land. The county is liable to the adjacent owner for damages caused by such an act, whether the act be an act of trespass which would create liability regardless of negligence, or the negligent performance of an act which the county might rightfully perform in a proper manner. This is in accord with the principles stated in Kobs v. City of Minneapolis, 22 Minn. 159, 164, and McClure v. City of Red Wing, 28 Minn. 186, 193, 9 N. W. 767. See also 4 Dillon, Mun. Corp. § 1743; 1 Elliott, Roads & Streets, § 580. Kiefer v. County of Ramsey, 140 Minn. 143, 167 N. W. 362, contains nothing out of harmony with this rule. We are neither extending nor restricting the rule of our former decision as to the liability of counties for acts of their officers, but applying their principle. We are unable to draw any distinction in principle between acts which cause a trespass by the invasion of flowing water, which the agents of the county negligently fail to control, and those which cause damage by the invasion of fire, which agents of the county negligently fail to control.
Order reversed.