St. Paul & Duluth Railroad v. City of Duluth

56 Minn. 494 | Minn. | 1894

Canty, J.

The part of the city of Duluth here in question is a • steep hillside, sloping towards St. Louis bay. This slope rises 600 •feet above the bay, and extends back from it more than a mile. In 1870, between the foot of the hill and the bay, there was a wide margin of marsh or swamp, covered, more or less, with the. water ■of the bay. Between what is now Fourth Avenue East and Twelfth .Avenue West, there were on this slope seventeen large ravines, which were well-defined water' channels, in which water ran down the Mill into the swamp below, and there spread out over the swamp, ¡and flowed off into the bay. In seven of these ran perennial streams vof water, and in the other ten large volumes of water ran during times of storms, freshets and melting snows. There were many other smaller depressions and ravines, which carried more or less surfáce water at such times into the swamp.

In 187.0 the predecessor in interest of the plaintiff constructed its track along on this swamp, parallel to the foot of the hill and the side of the hay, upon piling driven into the swamp. This piling offered no resistance to the free egress of the water. From time to time since, the plaintiff has added other tracks built on piles, and has filled up the right of way under the tracks with embankments of earth, leaving no place or passage for the egress of the water, except one near Tenth Avenue West, which is sixteen to eighteen feet wide, and is still crossed by the track, supported on piling. At seven or eight other points, plaintiff has put in temporary box culverts of wood across the right of way, not opposite the ravines and natural water channels, but opposite the ends of the storm sewers hereinafter mentioned. The part of the city built on this slope was platted before the railroad was built, with streets running along the side the slope, parallel with the railroad right of way, and other cross streets running up and down the side of the hill, terminating at the right of way. These streets have since been improved, and now exist as so platted.

The city has also constructed under these cross streets fourteen sewers, which run down the hill, and all of them terminate at plaintiff’s right of way, except two, one at Lake Avenue, and one at Fifth Avenue west, which have been extended under the right of way to the bay. Some of the others connect with the box culverts above mentioned, some have no connection, and one or two empty into said bridged open space left across the right of way. These sewers carry off the surface water deposited by rains and snows and the water of the seven perennial streams, all the water having been diverted from the said seventeen ravines into these storm sewers. They are connected only with the catch basins in the streets, not with the houses. There is another system of sanitary sewers running at right angles to these storm sewers, and having no connection with them.

The plaintiff brings this action against the city to enjoin the use by it of these sewers, and the depositing of the water from them on plaintiff’s right of way. It is not claimed that these sewers bring any more water onto plaintiff’s premises than was brought by the ravines and- creeks in a state of nature; but it is claimed that the water has been diverted from the creeks and ravines, and deposited at other points on the premises; that it runs down these sewers with, great velocity, and strikes the roadbed with great force, tearing it up.

The plaintiff further claims that “it is well settled that the construction of ditches and pipes for the sole purpose of drainage, gathering water in streams or bodies solely to discharge it, and thus dumping it onto another’s land, is actionable. Such works are not a reasonable and proper improvement of one’s own premises.”

The cases cited by counsel are cases where surface water was collected and discharged onto premises where it would not naturally go. The city of Duluth would have no right to discharge surface water on the land of any private owner, unless his land is the natural channel or dumping ground for it. But the land of plaintiff is such natural dumping ground. Plaiatiff complains that the city is mailing such of it, but it seems to forget that nature, and not the city, has made this place such dumping ground, and that the city has never relieved the land of such servitude. It complains that the city diverted the water from its natural channels into these sewers, which deposit the water at different points on its premises from those at which the ravines deposited it; but it forgets that these premises are, so to speak, all channel, and that, while the city diverted the water from its natural channels upon the slope of the hill, it returned the water to that channel, — the common dumping ground,— at plaintiff’s premises. If plaintiff had improved its right of way with special reference to the ends of the ravines, and left openings opposite such ends for the water coming down the ravines, then the plaintiff might be in a position to object to a diversion afterwards of the water to the points where the sewers terminate. But it has not done so. It has permitted the city to make these changes, and has to a considerable extent adopted the plan of the city, by closing up all openings for egress of water at the ends of the ravines, and putting in the box culverts opposite the ends of the sewers. Estoppel by conduct, if any exists, is against the plaintiff, not against the city.

The defendant is not liable for failing to relieve plaintiff of the burdens put on plaintiff’s premises by nature, or for failing to provide a sewer system for plaintiff’s premises. “The duty of providing drainage or sewerage is in its nature judicial or legislative, and consequently a municipal corporation is not liable for mere nonaction in failing to perform it.” McClure v. City of Red Wing, 28 Minn. 194, (9 N. W. 767.)

It is true that the water comes down against plaintiff’s right of way with considerable velocity, but that is a velocity given it by the hillside, which was made by nature, and not by the city.

It seems to us that the case is simply this: Can the owner of a swamp improve it, and then compel the owner of the high land around it to keep the surface water naturally tributary to the swamp from coming from the higher lands upon the swamp? We think not.

For these reasons the order denying the motion for a new trial should be reversed. So ordered. .

(Opinion published 58 N. W. Rep. 159.)