25 Minn. 331 | Minn. | 1878
Appeal from an order sustaining a general demurrer to the complaint. The substance of the complaint is: That the city established the grade of, opened, graded and improved, Hoffman avenue, a public street in the city, extending along and upon the side of a high bluff, known .as Dayton’s bluff. Conway street, another public street, intersects Hoffman avenue nearly at right angles, and extends •down the face of the bluff. Down the face or surface of this bluff, a large amount of water, from a great extent of country beyond it, drains, at the time of every considerable fall of rain, .and, before Hoffman avenue was graded, reached the flat below by means of many natural channels or depressions in the face •of the bluff, without flowing upon plaintiff’s lots, which lie down the bluff, about fifty feet below the grade of the avenue. The grading and improving of the avenue interfered with the natural flow of the water falling in rains, upon, back of and beyond the bluff, diverted it from its natural channels, and ■caused it to flow along the avenue from both directions to its intersection with Conway street, and to collect at that point in great and dangerous quantities, so as to flow with great violence over the grade of the avenue upon the lots below. The city (negligently, as is alleged,) failed to care for, or ■carry away, or provide any means for carrying away, the water accumulating at that point in times of rain. On two •specified occasions, great and dangerous quantities of water, which had fallen in showers, collected, by reason of the grade •of the avenue, at its intersection with Conway street, and was discharged‘from the avenue upon lots abutting thereon, and •over said lots upon the lots of plaintiff, doing great damage.
There is, in the complaint, a general allegation that in all respects the grading and improving of the avenue was negligently and improperly done, and that the city negligently and wrongfully failed to keep the avenue open and in good repair, .and free from obstructions and nuisances, as it is bound by its charter. But it is not alleged in what particulars (aside irom so establishing the grade, and grading, as to accumulate
The only point presented by the complaint is as to the right of a municipal corporation to so grade or improve its streets as to collect surface waters in large and dangerous quantities, and permit them to discharge upon lots of private owners, injuring or destroying them, without making compensation. The question has never before been presented to this court. O'Brien v. City of St. Paul, 18 Minn. 176, was a case of unlawful interference with a natural water-course, and all the decisions hold that for such an interference a municipal corporation is liable to the same extent as a private person. Kobs v. City of Minneapolis, 22 Minn. 159, was not a case of water collected and discharged upon private property, by grading or improving a street, but of water discharged upon one lot, for the purpose of relieving another. In Lee v. City of Minneapolis, 22 Minn. 13, there was no accumulating of surface water, but, as a consequence of raising the grade of a street, the rain-water falling upon it spread into the lot of the plaintiff; and in Alden v. City of Minneapolis, 24 Minn. 254, the street grades did not turn upon the plaintiff’s premises any greater quantity of water than, in the natural condition of the surface, would have settled there; and the only question was, whether a mu-ncipal corporation is liable for neglecting to construct sufficient sewers and gutters, where the necessity for them is not created by the act of the corporation. In the first of these two cases, the court held the corporations liable; in the last two, not liable. There are many cases, of which a leading one is Radcliff v. Mayor of Brooklyn, 4 N. Y. 195, to the effect that for consequential damages to private property, causea by grading streets within the authority conferred on a municipal corporation, there is no remedy to the owner, unless one is given by statute; and some cases, following the
The right of the corporation to establish such a grade for a street, and to improve it as the public interest may require, is consistent with this rule. For a private owner, in improving his land, may raise or lower its surface, although coterminous lands may be thereby rendered less desirable. And if the grade established for a street make access to an abutting lot less convenient than before, still the owner has no legal cause of complaint, for he has no right to a«use of the street inconsistent with the public use; his rights in it, both for passage and access, are subject to the public right, and to the power of the proper authorities to make it fit and convenient for public use.
As to what' may be done by coterminous owners as affecting surface water, the decisions of the courts in the different states are conflicting. Some of them admit the doctrine of servitudes as it exists in the civil law, holding that an owner has no rigiit to
His right to adopt such means of improvement, by building, ditching, or otherwise, as to accumulate the water, and discharge it in large and destructive quantities directly upon adjoining land, is perhaps more questionable. The spread and diffusion of the water over the coterminous land is a necessary consequence of improvement, where raising the surface is necesoary for that purpose, and the injury caused is ordinarily slight; while discharging the water in torrents is seldom unavoidable, and usually the result of caprice and whim-on the part of the owner improving, and likely to be attended, with serious consequences. Although we are not prepared to-say that in no case can an owner lawfully improve his own land in such a way as to cause the surface waters to flow off' in streams upon the land of another, we do not hesitate to say that he may not turn the water in destructive currents upon the adjoining land, unless it be necessary to the proper improvement and enjoyment of his own land. Nevins v. Peoria, 41 Ill. 502; Aurora v. Gillet, 56 Ill. 132; Aurora v. Reed, 57 Ill. 29; Pettigrew v. Evansville, 25 Wis. 223; Hoyt v. Hudson, 27 Wis. 656; Livingston v. Macdonald, 21 Iowa, 160; Indianapolis v. Lawyer, 38 Ind. 348; Rhodes v. Cleveland,. 10 Ohio, 159.
From the complaint there does not appear any necessity, in grading the avenue, to collect the water at the point indicated, nor any difficulty in conducting it off without injury to-private property, if it was desirable to so grade the avenue as to accumulate the water there. Having accumulated the-water there, it was the duty of the city to take care of it—
Order reversed.