13 Minn. 442 | Minn. | 1868
By the Court It is alleged in the complaint in this action, that the plaintiff is and was during the summer of 1866 and the spring of 1867, the owner and in possession of lots 7 and 8 in block 182, in the town of "West St. Paul, and a dwelling house thereon situate; that during the summer of 1866 the defendant made a deep excavation upon lands near said lots and house, and more elevated than said lots, and in making such excavation the defendant took no precaution to prevent the water when said excavation should become filled by the high water in the spring, as was probable to happen, from breaking out of the same, and running down upon the plaintiff’s lots and house, but on the contrary made the excavation in so careless and negligent a manner, that in the spring of 1867, after said excavation had been filled by the high waters of the Mississippi River, and when said water began to subside, the water collected in said excavation, owing to the carelessness and negligence of do
After the plaintiff had closed his case the defendant moved “ to dismiss the action on the ground that the plaintiff had proved no title to the land described.” The motion was de nied, and defendant excepted. To sustain this action it was not necessary for the plaintiff to establish a title in fee.' If his right in the premises was a right of possession for a limi
The defendant’s counsel requested the Court to instruct the jury ; “ If the plaintiff’s house was injured by- water which overflowed the usual and natural banks of the- river, and if such overflow was not caused, nor increased, nor in any wise aided, or contributed to by the excavation complained of, the defendant is not liable, and the jury must return a verdict in its favor.” The instruction was refused.
The Court instructed the jury as follows :
1. “ That in making the excavation the defendant was bound to guard against unnecessarily injuring, or causing injury to the property of others.”
2. “ That if the excavation was likely to collect the waters in a body, and when so collected they were likely to break out, it was the duty of the defendant when the excavation was made, to take such reasonable precautions as it could to
3. “ That the defendant had no right to unnecessarily divert or change the channels or course which the water had been accustomed to take, so as to cause it toflow across plaintiff’s land in a line which it would not otherwise have taken, and if the excavation made by defendant was likely so to divert or change such channels, or courses, it was the duty of the defendant to take such reasonable precautions as it could to prevent its doing damage to plaintiff’s property. If it ne-. glected to take such precautions, it is liable for the damages directly resulting to plaintiff’s property from such neglect.”
We perceive no error in the refusal to give the instruction asked by defendant, nor in the instructions given.
The complaint charges the defendant with carelessness, and negligence in making the. excavation, and that owing to such carelessness and negligence the injuries 'complained off resulted to the plaintiff’s lots and house.
This case comes up to this Court upon a bill of exceptions.
The bill shows that evidence was given by the plaintiff tending to show, “ That the Mississippi River in seasons of high water was accustomed to overflow its banks; that it was so overflowed in 1859, 1861, 1862, and 1866, and four times in 1861, and that at such times its waters would overflow and spread over the section of country in which the said house and lots were situate; that there was a depression of the land forming a kind of small slough or temporary channel immediately back of said house, and extending for some distance above and below said house, through which a portion of the waters had, in the years of overflow between 1858 and 1861 passed, and flowed off in a current or stream; - that said house
Now we are not prepared to say that this evidence does not go to raise some presumption of negligence on the part of the defendant in making the excavation, (see Bellinger vs. N. Y. C. R. R., 23 N. Y., 46,) but at any rate, as we have only .a bill of exceptions, and not a case containing a full report of the evidence, we cannot say that there was not testi
We cannot presume under such circumstances that the evidence of carelessness and negligence was insufficient to warrant the charge of the' Court, or to justify the verdict.
As to the instructions asked by defendant, and refused by the Court, it is enough to say that it is not important that the overflow of the usual natural banks of the river was “not caused nor increased, nor in any wise aided or contributed to by the excavation.”
The plaintiff does not complain that such overflow was caused, or increased, or aided, or contributed to, by the excavation as will be seen by reference to the abstract of the complaint before, given, nor is this what the evidence which we extract from the bill of exceptions tends to show. The instruction has no relation to the issues, and was properly refused. The instructions given by the Court were rightly given. Whether the defendant had the right to make that part of the excavation made in the street, we need not consider. Admitting that it had this right, it was bound to exercise the same, as well as its right to excavate upon its own land, with all necessary and reasonably practicable care and skill, so as to save the neighboring proprietors from any injurious consequences which might result from changing the natural surface of the ground. If by proper caution the defendant might have avoided or prevented the injury to plaintiff’s premises, the want of such caution is sufficient to sustain this action. Bellinger vs. New York Central R. R., 23 N. Y., 42; Radcliffe’s Ex’rs vs. Mayor &c. of Brooklyn, 4 N. Y., 195; Lawrence vs. The Great Northern Railway Co., 16 Ad. & El. N. S., 643. The instructions given áre substantially in accordance with these views.
The judgment is affirmed.