144 Minn. 60 | Minn. | 1919
This is an action brought to recover damages and to obtain an injunction restraining an alleged nuisance caused by the discharge of sewage on plaintiff’s land. A jury returned a general verdict in plaintiff’s favor for damages, with special findings, the third of which is as follows: “Q. Has the defendant, since the commencement of this action, maintained and is it now maintaining a public nuisance upon or in the immediate vicinity of plaintiff’s farm? A. Yes.” The fourth question was the same as the third, omitting the word “public,” and was answered in the same way. Plaintiff moved for judgment on the general verdict for damages and for an injunction restraining defendants from continuing the discharge of sewage where it would come on his land. The court made findings in which the special findings of the jury were incorporated. Among the facts found by the court were the following:
That the village of M-apleton maintains a sanitary sewer, discharging into a county ditch which extends across plaintiff’s land; that prior to the construction of the ditch the surface waters from the greater portion of the territory included in the village, ran off naturally, substantially along the course of the ditch; that the village was assessed for benefits in the proceedings for the construction of the ditch and has since used it to carry off surface waters; that plaintiff permitted his live stock to get into the ditch, and in consequence it has partially filled up and the flow -of water has been interfered with; that there are over a thousand inhabitants in the village, and for the protection of their health a drainage system substantially similar to the one in use is a public necessity, and that irreparable injury would be worked by an injunction restraining its use; that since the action was commenced the village has constructed a septic tank in connection with its sewer system for the purification of sewage, and that, if the tank is properly maintained and operated, it will render the sewage in-offensive, and, if it fails fully to accomplish this result, a slight modification of the system will accomplish it, and that plaintiff has an adequate remedy at law for any damage he may sustain and hence is not entitled to an injunction.
Both parties moved for amended findings. Defendants’ motion was
Defendants’ Appeal.
In effect the statute requires notice to be given where damages are claimed on account of a defect in a public way or place, which is within the exclusive control of a city or village, or by reason of the negligence of any of its officers, agents or servants. The findings of the jury are that defendants created -and maintained a nuisance and that plaintiff’s damages were caused by the affirmative, wrongful acts of the defendants, and not through negligence. We hold that the statute does not apply to such a case. The following cases 'bear more or less directly upon the point decided and tend to sustain our conclusion: Mitchell v. Village of Chisholm, 116 Minn. 323, 133 N. W. 804; Diamond Iron Works v. City of Minneapolis, 129 Minn. 267, 152 N. W. 647; Johnson v. City of Duluth, 133 Minn. 405, 158 N. W. 616.
Plaintiff’s Appeal.
The question of the right of the village to discharge sewage at a place from which it flows into the county ditch has been presented and argued, but it is unnecessary to pass upon it in view of the fact that there must be a new trial of the equitable issues in the case. We find nothing in the assignments of error of either party, which we have not discussed, requiring special consideration.
Upon 'defendants’ appeal from the judgment for damages, such judgment is affirmed.
Upon plaintiff’s appeal from the portion of the judgment which denies him equitable relief, the judgment is reversed and a new trial granted.