Alden v. City of Minneapolis

Cornell, J. Under the issues, the situation and topography of the country immediately surrounding and including the premises in question, in its natural state, and at the time when the acts complained of were done, in reference to the flow of surface water, and the effect which the system of drainage adopted by the city, and the work done thereunder, had upon such flow, as respects the premises of plaintiff, were proper subjects of inquiry. The evidence, therefore, which was received on the trial under plaintiff’s objections, the admission of which is now assigned as error, was not objectionable. ■ The point made, that some of it was not pertinent on cross-examination, is no ground for setting' aside the verdict, inasmuch as this was a matter in the discretion of the trial court. The principal questions presented, however, relate to the legal effect of the whole evidence, which is before us, and the correctness of the instructions given to the jury and excepted to by the plaintiff. The errors assigned are upon such instructions, and the rulings of the court in its charge to the jury, and that the verdict upon the evidence is contrary to law. The general power of the city over its streets, under its charter, including the right to determine and establish the grades thereof, to make improvements in conformity therewith, and to adopt and prosecute a plan and system of drainage and sewerage, for the benefit of the ■ public, is unquestioned and conceded. Since, upon settled and familiar principles, all [260] questions concerning the conflict, weight and credibility of testimony, and what deductions, if reasonable, shall be drawn therefom, belong to the jury, and since the verdict must be sustained by the appellate court, if upon any reasonable theory of the evidence under the instructions it can be, in considering the question whether it is contrary to law we must assume that state of facts most favorable to the verdict which, under the charge, the jury was at liberty to find. In view of these considerations, it must be assumed that the jury rightfully found substantially the following facts, in proof of which there was sufficient competent evidence: Third street is crossed nearly at right angles by Nicollet street, Hennepin avenue, and First avenue south. Near the intersection of Third and Nicollet, and on a lot fronting upon the latter, the store building occupied by plaintiff was situated. The grade of these and other streets in that vicinity was legally established in 1870 and 1871. Prior to any improvements at the locality of the lot in question, and the intersection of Nicollet and Third streets, “there was, ” according to the testimony of some of the witnesses, “a natural depression from all sides,” the land being very low, so that portions of the year it was all under water, and “a pond” was formed, by the accumulation of surface waters, with no’ outlet. According to the natural topography of that section, the only feasible method for. draining it and getting rid of these surface waters, without excessive expense, was that adopted by the city. This was, to make an outlet of Third street towards First avenue south, so far as the nature of the ground would admit, by means of gutters constructed on either side, and in addition thereto two sewers were to be-constructed from Third street — one along Hennepin avenue,, the other along Nicollet — connecting with a main sewer on Washington avenue, with catch-basins and connecting pipes at the corners of the streets, in order to carry off whatever waters the gutters were insufficient to convey. In carrying out this system of street drainage it was necessary to estab [261] list the grade line of Nicollet, along plaintiff’s lot, at a height . above its natural surface, and to fill in accordingly, as was done by the city. At the time the injuries complained of happened, the streets in that vicinity had been properly graded, the gutters built, and one of the sewers — that on Nicollet — had been constructed, and the connections made with the gutters at the corners on Third and Nicollet, by means of suitable pipes and catch-basins. The sewer on Hennepin had not then been built. In this condition of things “there was about the same amount of surface water collected in the vicinity of this lot from showers, as there was originally,” before any improvements were made. The improvements as then made were sufficient to carry off, as fast as collected, all surface waters accumulating there during •ordinary rains, but were inadequate in very violent and heavy showers, such as those occasioning the damage in this ease. The construction since of the Hennepin sewer serves as an additional relief to the streets. There was no negligence or want of skill on the part of the defendant in the making of these improvements, or in keeping them in proper repair. The flooding which caused the injury was the result of unusual rains of great violence, which temporarily filled the streets in the vicinity of plaintiff’s lot to the depth of some five or six inches in the center, and beyond the capacity of the gutters and catch-basins at once to drain. Plaintiff’s store was built on a level with the established grade of the street, with a cellar or basement underneath, having front windows reaching below the sidewalk, and surrounded with areas inclosed in part with masonry and 'Stone work, and partly with wooden frames. The sidewalk itself, which was built by the owner of the building, was nearly four inches below the established grade, and below what it should have been. It was over this sidewalk and through these windows that the water flowed which occasioned the damage of which plaintiff complains. Upon this state of facts there was no liability against the [262] city. It had the right, as was its duty, to fix the grades of its streets, and to improve them accordingly, and wholly with reference to the public use and accommodation, and no right of action could accrue against it by reason of any consequential injuries resulting necessarily from the proper execution of this power. Lee v. City of Minneapolis, 22 Minn. 13. It was under no obligation, in establishing such grades and making such improvements, to conform them to the special necessities and requirements of plaintiff’s abutting property, for the purpose of draining it, or preventing the accumulation upon it of mere surface waters. Its clear duty to the public required, as was done in this instance, the elevation of the grades of Nicollet and Third streets, through this low place of ground, to such a height and level above its natural surface as would make them fit and suitable for public use and travel, by keeping them properly drained of such surface waters as usually collected in that locality. If, thereby, plaintiff’s lot was necessarily overflowed during heavy raiiw. to his injury, it was the misfortune of his situation in occupying premises thus naturally low, and his loss, if any, was damnwm absque injwria. He had no legal claim upon the city for the construction of any sewer to serve either as a- drain to his premises or as an additional relief to the streets themselves, and hence the omission to build the Hennepin avenue sewer furnished him no just ground for complaint. His proper, if not sole protection, consisted in raising his own lot above the grade line of the street, or in the erection of such walls and embankments as would have effectually prevented any flow upon him from the street. This he could lawfully have done, as he possessed the common law right of use and enjoyment, in respect to his lot, as fully and to the same extent as the city did in respect to its streets. Each had the right to use and improve, for any legitimate purpose, and in such manner as would protect against the incursion or accumulation of mere surface waters. Barry v. City of Lowell, 8 Allen, 127; Franklin v. Fisk, 13 Allen, 211; Turner v. Dart [263] mouth, Id. 291; Flagg v. Worcester, 13 Gray, 601; Wilson v. Mayor, 1 Denio, 595; Mills v. Brooklyn, 32 N. Y. 489; Imler v. Springfield, 55 Mo. 119; Hoyt v. City of Hudson, 27 Wis. 656. This case is entirely different from that of Kobs v. The City of Minneapolis, 22 Minn. 159, cited by appellant. There the injury was the direct result of a purely ministerial act, done carelessly and without any suitable precautions, whereby a large body of accumulated water was suddenly, and with destructive force, precipitated upon the premises of the defendant therein, to his injury. The facts of the two cases are as distinct as are the legal principles applicable to them. Beferring to the specific exceptions taken to portions of the charge, the statement that “it did not appear that the gutters were really any less effective after the sewer was constructed than before there was a sewer,” in the sense intended and understood, as admitted by appellant, was upon the evidence literally true and open to no controversy. Its meaning, as thus understood and intended, was that the construction of the sewer had no effect to impair the efficiency of the gutters. The expression of this fact, thus apparent from the evidence, and open to no reasonable dispute, affords no legal ground for alleging error. As to the drain cut by the street commissioner across Hennepin avenue, the court charged the jury that it was an act of the commissioner for which the city was responsible, and if they found any injury to plaintiff resulted from it, the defendant was liable. Whether this instruction was erroneous or not, plaintiff could avail himself of no objection to it, as it is evident the error, if any, was committed in his favor. None of the exceptions made were well taken, and the order denying a new trial is affirmed.