Ginter v. Rector of St. Mark's Church

LEWIS, J. The complaint alleges that plaintiff was damaged by defendant in wrongfully and unlawfully permitting the rain falling upon the roof — 15 — of its church building and parish house to be collected by means of gutters and discharged through conductors in unusual and destructive-quantities against plaintiff’s building, through its basement windows, and upon the adjoining ground, so that it formed large pools, and percolated through the soil and area walls into the basement, causing injury to merchandise therein located. The answer alleges that the gutters and conductors upon defendant’s church building had been in use for a period of time exceeding' fifteen years; that in erecting the building occupied by plaintiff certain basement windows upon the easterly side were provided, and, in order to secure light therefor, excavations were made on defendant’s adjoining property, in which area walls were constructed; that the water falling from defendant’s premises, if any, entered plaintiff’s basement through such windows, and on account of the wrongful and unlawful trespass of plaintiff, or his grantor, in so constructing the same upon defendant’s premises ; that there were several other buildings located upon the alley in the rear of the premises in question, and that during heavy rainstorms water was collected in the. alley to a depth of several inches, rushed j^ast plaintiff’s building, and entered the basement through the areas and windows in the rear thereof on a level or below the surface of the alley. It is alleged that from May 1, to October 1, 1902, there occurred in the city of Minneapolis several very severe, extraordinary, and unusual rainstorms, during which time rain fell with such force and in such volume as could not, by the exercise of ordinary prudence, have been anticipated or provided for, and that, if any waters from defendant’s premises entered plaintiff’s basement, it was due to such unusual and unforeseen circumstances. The court found that the building occupied by plaintiff was erected in 1901, prior to October 1; that it covered the entire lot, and extended from the sidewalk on Sixth street to the alley in the rear; that a basement extended over the entire distance, fifty feet of the front being two stories high, and the rear one hundred seventy feet one story that on the easterly side there were constructed three basement windows in the basement wall, forty-two inches in width and thirty-six inches in height, the tops of which windows were just above the level or surface of the ground; that for the purpose of admitting light to-the basement an excavation was made-opposite each window and an — 16 — ■area wall erected rising two inches above the level of the surface; that in June, 1902, the area wall opposite each of the windows was raised about four inches by the construction of a cement coping, making the total height above the grade about six inches; that the construction of the building with the basement windows in the manner aforesaid was a fact at all times known to the defendant corporation and its officers, as well as to the plaintiff, and no objection was ever made thereto either by plaintiff or defendant; that the lot in question, prior to the time of the erection of the store building, was three to four inches lower than the adjacent premises occupied by defendant’s church building, and the natural slope or descent of block No. 222 from the rear of the premises occupied by plaintiff and defendant at the time complained of was towards Seventh street and Hennepin •avenue, especially towards the southwesterly portion of the block, and was about twenty-four inches to each one hundred feet; that the premises occupied by defendant church are immediately east of plaintiff’s premises, and consist of a tract 158x166 feet, fronting on Sixth street, the rear upon an alley; that the church was erected upon the front three-fourths, more or less, of this tract, and had been so constructed for the period of fifteen years; that in 1901 there was erected on the rear portion of the tract, on a line with the alleyway in the rear of the church, a parish house; that these buildings were equipped with metal gutters, down spouts, and conductors extending to or near the ground; that one-half of the church building faces the east and the other half the west; that half of the parish house roof slopes towards the public alley and the other half slopes towards the north; that all of the gutters and down spouts attached to the eaves of the easterly half of the two roofs covering the parish house facing and sloping southerly and northerly were connected with the city sewer extending along Sixth street, and prior to the time the building occupied by-plaintiff was constructed the rain water falling upon the easterly sloping roof of the church and the easterly half of the two roofs of the parish house was by means thereof conducted into the sewer, and the water falling upon the westerly half of the church and 'parish house was, by means of gutters attached to the eaves and conductors leading to the ground, discharged in large or small amounts, according to the extent of the rain, upon the ground near the southeasterly line — 17 — of plaintiff’s premises, and by natural descent flowed over and upon the lot now occupied by plaintiff; that defendant’s church building is located about thirty-six to seventy-two inches distant from the easterly side of plaintiff’s building. The court further found that May 23 and 24 and August 30, 1902, very heavy rainstorms occurred in the city of Minneapolis, and large quantities • of water were carried by the gutters and conductors upon the westerly one-half of the buildings, and by means thereof were transferred and discharged in large and destructive quantities upon the ground at one or more points within close proximity to the easterly wall of plaintiff’s building, and more especially within three or four feet of the rear basement window at the southeasterly corner of plaintiff’s building; that the water so falling during the May storm flowed over the rear area wall into the basement, and the waters from the August storm worked down beside and through such wall into the basement, causing damage to plaintiff’s merchandise to the extent of $600. The court also found that the rain falling upon the roofs of the other buildings situated upon or near the public alley during the time specified, in so far as it was not carried away by the sewer, fell upon or near the alleyway, and, by reason of the natural slope, ran off towards Seventh street and the southwesterly side of the alley. The court further found that prior to 1902 there was built and constructed along Sixth street a public sewer for the use of abutting owners; that it was of proper dimensions, and had general connection with the sewer system of the city; that it was in a receptive working order, suitable and adequate for the purpose intended; that the cost of connecting the conductors above mentioned with the sewer system during the spring or summer of 1902 would not have exceeded the sum of $68; that the making of such connection was entirely feasible, and easily accomplished; and the court specifically found, by its twentieth finding of fact, that had defendant, prior to May 23, 1902, by means of sewer pipes properly laid, connected the westerly half of its church building gutters and down spouts with such city sewer, all of the rain so falling upon the westerly half of defendant’s building would have been transferred and discharged into the sewer, and would have flowed away from plaintiff’s premises, and no injury would have been caused thereby. The court further specifically found that if, at the — 18 — time specified, no gutters, eave troughs, or down spouts had been erected upon the westerly portion of defendant’s building, and the waters had been allowed to drop down from the eaves to the ground, it would have spread out and flowed away from plaintiff’s building by the natural decline towards Seventh street and Hennepin avenue, without causing the injuries complained of. The assignments of error challenge certain of the findings of fact upon the ground that they are not supported by the evidence. It was conclusively shown that the southerly portion of the west transept and the west slope of the south half of the church roof, together with the north slope of the southerly half of the parish house roof, were connected with gutters and two spouts, which discharged their collection, of water into the open space between the buildings upon defendant’s premises, and that a gutter was constructed under the southerly eaves.. of the parish house, the east end of which was connected with the sewer, but the west end of the gutter was connected with a spout at the southwesterly corner of the parish house, and the water discharged into the alley. The accompanying plat will assist in explaining the. — 19 — situation, as it shows the relative positions of the building occupied by plaintiff, the church building with its transepts, and the parish house. The evidence is ample to support the finding of the court that the waters thus collected and discharged into the disconnected spouts in the open space between the church and the store building ran out through the three-foot space between it and the parish house into the alley, there meeting the water discharged from the spout on the southwesterly corner of the parish house. Several witnesses testified that the waters thus coming together washed out the soil to some extent, creating a pool, described by one of the witnesses as ten feet wide during heavy rains; and that the water so formed could find no other outlet because of the grade, and consequently was raised to such a height that during the May storm it flowed over the area wall and into the grocery store basement, and during the August storm it worked down outside of and through the area wall into the basement; and that the quantity of water so collected was very heavy, and created such pressure as to force its way through the area wall. A plat was introduced, which had been made under the direction of competent engineers, upon which were marked the grades of the premises at various points and the location of other buildings upon the alley and in the vicinity. From the evidence of the civil engineer and other witnesses the court was justified in finding that the natural lay of the land from defendant’s premises sloped towards Seventh street and southwesterly, and from an examination of the plat it appears that there was a depression at the point where the waters met, so that before the water could pass in any direction it would have to rise five or six inches. The grade shows that at a point a few feet east of the southwesterly spout on the parish house there was a rise in the surface of the ground allowing no opportunity for the water to flow east, but from that point the grade fell to the east and south, consequently most of the water falling on the southerly slope of the parish house roof, had the gutter not been placed under the eaves, would have flowed away from plaintiff’s premises. As to the water coming through the disconnected spouts upon the southwesterly portion of the church building, while there was no other outlet for the same except into the alley through the narrow space mentioned, yet according to the evidence the court — 20 — was justified in holding that the volume was unnecessarily increased by thus collecting the water and discharging it at the points stated. There is evidence to support the finding that the sewer constructed in Sixth street was connected with the sewer sj^stem of the city, and was of sufficient capacity to carry away enough water to avoid injury under the circumstances, and that defendant might reasonably have connected the spouts with the sewer. i We are also of the opinion that the finding to the effect that the damage would have been avoided had such connection been made pri- or to the storms is sustained by the evidence. It was testified by certain witnesses for plaintiff that after the sewer connections were made in October, 1902, no water had collected in a pool at the rear of the parish house nor entered plaintiff’s basement. Other testimony to the same effect was given, but stricken out — whether rightly or not we need not consider. It was also conclusively shown that the water falling on the roof of plaintiff’s building was during the entire time connected with the sewer system, and that water from the buildings upon the alley and vicinity could not find its way into the basement by reason of the surface grade. And the evidence tends to show that the only water other than that delivered from defendant’s premises was such as fell from the clouds into the open space between the two buildings and a small portion of the alley adjacent to the basement window and from the disconnected spout on the parish house. There was a dispute as to whether the gutters all overflowed, and some evidence was submitted by defendant tending to prove that the storms were of such extraordinary character that the sewers would not have taken care of it had the spouts been connected; that a wind was blowing from the south, and some water must have been thus driven into the basement window. All this has been considered, and the conclusion of the trial court must be accepted. Under the evidence the court was justified in finding that sufficient of the rain falling during the storms of May and August would have been carried off by the sewer system had the connection been made, and so have prevented the damage in question. Having determined that the facts as found by the court are supported by the evidence, we come to the consideration of the legal questions involved. As we understand defendant’s position, conceding the facts to be as found by the court, under the law of this state, — 21 — an owner has the right to dispose of surface water in any manner incidental to the improvement; that defendant had a right to construct the church and parish house upon its premises, to erect a roof thereon, and it was no concern of defendant where the waters were thereby incidentally discharged; that, if plaintiff’s improvement was made subsequently, it was his duty to protect himself. Plaintiff abandoned all claim for damages caused by water entering the basement through the windows on the east side of his building, and confines himself to damages arising from water entering the rear window. So far as the excavation at the rear of the building and area wall are concerned, the evidence is ample to refute the charge that plaintiff did not use reasonable care to protect his premises. The area wall was constructed in the alley, made of brick and cement, inclosing an excavation about eighteen inches wide and two feet deep, and prior to the May storm was two inches above the surface of the ground. The evidence shows that the water entered the basement on that occasion by flowing over the area wall, which it would not have done except for the fact that defendant caused such volume of water to be concentrated in a depression in the alley that its first natural outlet was over the area wall. Upon discovering the fact that the area wall was not of sufficient height, in June following the May storm plaintiff caused his landlord to raise the area walls of all the windows by adding a four-inch cement coping. This, under the evidence and findings of the court, was a reasonable exercise of care to protect plaintiff’s premises. During the August storm the waters collected with such force as to wash out the porous, sandy soil and brick of the area wall, thereby flowing through and under it, entering the basement window in a large stream. Plaintiff cannot be held negligent in failing, under the circumstances, to protect himself by constructing an area wall of sufficient strength and character to withstand the pressure of water collected in the manner stated. The rule with reference to surface water, as stated in Brown v. Winona & S. W. Ry. Co., 53 Minn. 259, 55 N. W. 123, has been followed in subsequent cases, and is as follows: When an owner improves his land for the purpose for which such land is ordinarily used, doing only what is necessary for that purpose, and being guilty of no negligence in the manner of doing it, he is not liable because, as an — 22 — incident of so improving, surface waters accumulate and flow in streams upon the lands of others. This rule was recently applied in the case of Werner v. Popp, 94 Minn. 118, 102 N. W. 366, where it was held that the upper proprietor did not necessarily cause damage to a lower proprietor by digging a ditch which shortened the route of surface waters falling upon his land. In the case of Philips v. Taylor, 93 Minn. 28, 100 N. W. 649, it was stated that the party was required to exercise due care, but not, under all circumstances, to protect his neighbor. In Sheehan v. Flynn, 59 Minn. 436, 61 N. W. 462, the rule is stated thus: The common-law rule is modified in this state by the rule that the party getting rid of surface water in the improvement of his own premises must so use his own as not unnecessarily or unreasonably to injure his neighbor. In Oftelie v. Town of Hammond, 78 Minn. 275, 80 N. W. 1123, attention was called to the fact that the doctrine of reasonableness was adopted in Sheehan v. Flynn, supra; Gilfillan v. Schmidt, 64 Minn. 29, 66 N. W. 126; Jungblum v. Minneapolis, N. U. & S. W. Ry. Co., 70 Minn. 153, 72 N. W. 971; and Burnett v. Great Northern Ry. Co., 76 Minn. 461, 79 N. W. 523. There is no distinction in the principle applicable to cases of surface water in the country, where lands are left largely in their natural state, and in cities, where the land is cut up into small lots for the purpose of improvement; but there may be a vast difference in the application of the principle. It all depends upon the circumstances of the particular case as to what degree of care is required of a party attempting to get rid of surface water upon his premises. It does not follow that because in the country an upper proprietor may be permitted to aid the surface water on his field in its exit through a natural channel upon a lower proprietor, thereby enabling large volumes of water in a rainy period to accumulate, the same thing can be done in a city in thickly settled portions, where improvements are general, and a common drainage system has been provided. Such a system of drainage to carry off surplus water is calculated to avoid the very difficulties which give rise to so much conflict between- upper and lower proprietors in the country. The very object of constructing sewers along public streets adjacent to premises is to afford parties making improvements opportunity to connect therewith; and, if such connections can reasonably be made, upon what rule of law has a party — 23 — the right to maintain an improvement and refuse, to. avail himself of this means of getting rid of a common enemy, instead of turning it upon his neighbor’s premises? The doctrine of reasonableness and due care applies to this case, and under the facts found defendant should have availed itself of the means at hand to prevent injury to plaintiff’s property. It is immaterial that defendant first made its improvement. It is not seriously contended that defendant did not have notice of the change in conditions caused by the improvement of the adjacent lot. It was open to casual observation, and one of defendant’s officers frankly admitted that he was familiar with the situation. Under such circumstances defendant was required to take notice of the effect liable to be occasioned by allowing the waters to run at- large. While hardly necessary, it may be observed that defendant cannot take advantage of the fact that the area wall in question was extended about eighteen inches into the alley. If in so constructing the building plaintiff’s landlord infringed upon any of the rights surrendered to the public when the alley was dedicated as a highway, those questions are not here involved. Presumably, defendant acquired no right, as against an adjacent proprietor, to use the alley as a sewer to carry off water, other means being reasonably obtainable. Order affirmed.