Thornton v. Smith

11 Minn. 15 | Minn. | 1865

By the Gowrt

Beret,- J.

This action is brought to effect

the removal of a dam by which the appellant claims that the water of. Little Balls Creek is so raised as to overflow and damage his land. In their second defense the respondents rely upon the statute of hmitations found in “ an act relating to mill-dams and mills ” on page 849, Pub. St. Sec. 17. To this defense the plaintiff demurs; and the demurrer brings before the court the question whether the complaint states facts sufficient to constitute a cause of action. Stratton v. Allen et al., 7 Minn. 505.

It is insisted by the counsel for the respondents, that the complaint is insufficient in failing to allege a special demand for the removal of the nuisance complained of, before action brought. We think the complaint is in this respect justly 'open to objection. We understand the facts and the law to be substantially as stated by the learned judge below in his decision upon the demurrer, as follows: “In this action among other facts standing admitted upon the record under the demurrer, it appears that the defendants did not create the nuisance; that the dam was built in 1856, and repaired in 1863, and that the title and possession passed to them subsequently. And while it is true that the continuance of a nuisance is in law a new nuisance, yet in cases where the dam or other nuisance was not erected or caused by a party, but simply continued, he should be allowed to abate it, on notice, without suit, before being subjected to an action.”

We think the principle here enunciated is sustained by the following authorities: 1 Ch. Pl. 83, 387, 330; 2 Ib. 770 (note h) 2 Starkie Ev. 745; 1 Hilliard on Torts, 657, Ib. 710, and cases cited in note. Waggener v. Jermaine, 3 Denio, 308; Angell on Watercourses, Sec. 403; 2 Kernan, 493-4; 13 Conn. 303; 44 Maine, 154; Snow v. Cowles, 2 Foster, (N. H.) 96; Hubbard v. Russell, 24 Barb. (S. C.) 407.

But it is insisted by the counsel for the appellant, that the authorities on this question of notice only go to show that notice is necessary where the action is brought to recover damages arising from a nuisance, and do not apply where the relief sought is an abatement of the nuisance complained of and no claim for damages is made. This may be quite true in regard to some of the authorities cited above, but it is to be observed that most of them lean upon Penruddocks Case, 5 Coke, 100, in speaking of which in Brown v. Cayuga and Susquehanna R. R. Co., 3 Denio, 492, Mr. Justice Denio gives as the reason why notice was required in that case, that the action was a quod qyermittat, in which an abatement was sought. The counsel for the appellant urges, as a reason why a request to remove should not be held necessary where an abatement is sought, that the continuer of the nuisance can avoid all trouble by not defending, and the court, while giving judgment for abatement, still adjudge that the plaintiff -shall pay costs. As a practical matter however, prudence would require the defendant to appear and maintain whatever rights he might have, for it may be that only part of the dam ought to be removed, and it is altogether probable, as business is usually transacted, that costs would be adjudged against him unless objection was made on his behalf. And if he should appear and recover costs upon a disclaimer of all right to maintain the dam, still under our system costs are not compensatory as a matter of fact. On the argument of this case we were requested by the counsel for the appellant to determine the question directly raised by the demurrer, that is, whether the statute of limitations found in the mill-dam act is applicable when the action is brought, not for damages, but for an abatement of the nuisance complained of, but we forbear to do so, at this time, because such determination is not requisite to a decision, and because the counsel for the respondents, relying upon the point on which we decide the case, expressly declines to furnish argument or authorities upon the subject.

The order overruling tbe demurrer is affirmed, and the action remanded.