Roche v. City of Minneapolis , 223 Minn. 359 ( 1947 )

I am unable to concur in the majority viewpoint. In my opinion, the recitation of facts therein ignores conflicting evidence submitted by plaintiffs, received by the court, and considered by the jury. I refer particularly to the statements in the majority opinion that plaintiffs' lot and the four adjoining lots to the north thereof comprised the lowest point in the area; that there was no evidence to establish the existence of a natural or artificial channel of surface waters or to indicate that defendant had blocked such a channel, stopped the flow of such waters, gathered them up, and cast them in injurious quantities on plaintiffs' property; and that there was no evidence to establish that water was introduced onto plaintiffs' premises that did not originally belong there. Such statements ignore completely the testimony of Adolph F. Meyer, an expert on the subject of water drainage, who testified at length on behalf of plaintiffs and whose testimony was for the most part undisputed.

After an extensive foundation establishing his familiarity with the district and with the premises belonging to plaintiffs, his experience and study of water flowage generally, and in particular with reference to this district and plaintiffs' property there, Meyer testified in substance as follows:

That he first inspected plaintiffs' property and the surrounding area on June 28, 1942, after a heavy rainstorm on that day; that he then found a large pool had formed at the corner of Forty-first and York because the York avenue drain was not taking off the surface waters at this point; that such waters were overflowing the sidewalk and curb there, which had been permitted to sink below the street level, onto the vacant lots north of plaintiffs' premises; that observations and tests made by him indicated that such waters thereafter settled into the ground, raised the underground water level, moved southward, and forced their way up through plaintiffs' basement floor.

That the natural flow of water in this area is from the high ground west of York easterly down to York and thence north to Lake Calhoun; that Fortieth and Forty-first streets and York avenue constitute dams across the natural water channels from five to seven feet in height; that a 1916 survey submitted in evidence indicates that a culvert existed on York avenue through Fortieth street to aid in carrying off such surface waters, but that it had been eliminated at the time of his inspection of this area; that the surface waters cannot get into the intakes of the drain sewers on York avenue because the streets are substantially higher than the surrounding ground; that in consequence such waters become trapped at Forty-first and York and overflow onto the vacant lots north of plaintiffs' house.

That the drainage of surface waters here is further retarded because the Thirty-eighth street drain carrying off waters from much higher ground to the west brings such waters into the York avenue drain at Thirty-eighth and York with sufficient force to block the flow in the York avenue drain and to cause the water therein to back up and stop the drainage of surface waters at street intersections south thereof, particularly at Forty-first and York.

That such drainage is further retarded because the present outlet of the York avenue drain in Lake Calhoun is below the lake surface and hence is bound to become clogged with sand and mud to an extent sufficient to retard drainage therefrom; that such outlet was examined by him on two subsequent occasions, once in the winter, when he found only three and one-half inches of the 48-inch outlet open, and once in the summer, when only one and one-half to two feet of said outlet remained clear.

That because of the conditions outlined there is no way for the surface waters which follow ordinary heavy rainstorms such as occurred on May 29, 1942, to drain off from the area except by seeping and filtering into the ground.

That the lowest point and natural depository for surface waters in this area is not at the corner of Forty-first and York, but some distance cast thereof; and that the street and drainage system constructed by defendant, rather than the level of the area, occasioned the gathering up and depositing of the surface waters on the premises adjacent to plaintiffs' house.

Meyer further testified that defendant should have provided adequate drainage by (1) maintaining the original natural surface-water channels through the installation of adequate culverts under the streets; (2) by providing a direct and separate outlet for the Thirty-eighth street drain; (3) by constructing the outlet for the York avenue drain at lake-surface level instead of below the surface; (4) by maintaining the curbs and sidewalks so as to prevent their sinking below the level of the streets; and (5) by maintaining the original level of the York avenue drain as it extended into Lake Calhoun.

The trial court set aside the verdicts because, as stated in its memorandum (1) the evidence clearly indicated that the May 29 storm was an excessive and severe one, breaking all records for the past 50 years; and because (2) there was no evidence that the waters overflowed the catch basins and manholes on York avenue; and in consequence the conclusion was inescapable that plaintiffs' damage was caused by the unusual and heavy rainstorm rather than defendant's negligence. I am convinced that both these questions were for the jury.

As to whether the May 29, 1942, rainfall was excessive or otherwise, the testimony concerning it is in conflict. Mr. Meyer submitted evidence from his records indicating that once in 10 years rain falls in Minneapolis at the rate of 2 inches in one hour; once in 25 years at the rate of 2.4 inches in one hour; that on May 29, 1942, the rainfall was less than one inch in an hour and only 2.63 inches in 24 hours (although the downtown station showed 3.59 inches in 24 hours); that this was not an unusually, but only an ordinarily, heavy rain; that the peat soil north of plaintiffs' home would have absorbed this rain had not the waters from the surrounding streets backed up thereon, as previously described.

Government records submitted by defendant established that in May 1942 the total rainfall for the month was 6.78 inches, although the loop station indicated 10.92 inches for such month. Defendant's exhibit W, a government record, indicated that in July 1892 in Minneapolis 11.87 inches of rain fell; in June 1897, 9 inches; in May 1906, 10.33 inches; in June 1911, 6.93 inches; in October 1911, 6.42 inches; in August 1924, 7.35 inches; in May 1938, 6.97 inches; and, as previously stated, in May 1942, 6.78 (or 10.92) inches.

Mr. Martin Hovde, meteorologist in charge of the Minneapolis weather bureau, testified that the rainfall on plaintiffs' residence on May 29, 1942, had been exceeded many times in the history of the bureau for the 24-hour period, and that there were no short periods of excessive rainfall during that storm.

As to whether there was evidence that the waters overflowed the catch basins and manholes on York avenue, the second point raised by the trial court, both Meyer and plaintiff J. Clayton Roche testified in substance that the pool was formed on the vacant lots north of plaintiffs' property because the York avenue drain did not take away the surface waters after the storm, and in consequence that such waters were gathered up at the intersection of Forty-first and York, overflowed the sunken curb and sidewalk there, formed the pool described, and continued to break into plaintiffs' basement for several weeks following the May 29 storm.

1. It would seem that the evidence outlined, which for present purposes must be accepted as true, is ample to require submission to the jury of several important issues, including the two withdrawn by the trial court after verdict; and, further, that a jury's finding in favor of plaintiffs thereon would be amply sustained by the evidence referred to.

2. Several legal principles applicable here are well established in this state. We have held that a municipality has a right to open and grade streets, even to the extent of interfering with the natural flow of surface waters, without liability for incidental damage caused thereby. Lee v. City of Minneapolis, 22 Minn. 13; Alden v. City of Minneapolis,24 Minn. 254; Henderson v. City of Minneapolis, 32 Minn. 319,20 N.W. 322; Pye v. City of Mankato, 36 Minn. 373, 31 N.W. 863,1 A.S.R. 671; Tate v. City of St. Paul, 56 Minn. 527,58 N.W. 158; Schuett v. City of Stillwater, 80 Minn. 287,83 N.W. 180. It is equally well established, however, that a municipality may not, in grading its streets, block the natural channel of surface waters in such a way as to gather up such waters in a body and cast them in large and injurious quantities upon the property of others where they did notpreviously flow. O'Brien v. City of St. Paul, 18 Minn. 163 (176); Brown v. Winona S.W. Ry. Co. 53 Minn. 259,55 N.W. 123, 39 A.S.R. 603. The duty rests upon a municipality to employ competent engineers to plan and supervise the construction of its system of streets and drainage disposal, and, ordinarily, if it thus acts it is not liable because of errors of judgment therein. Pye v. City of Mankato, supra; McClure v. City of Red Wing, 28 Minn. 186, 9 N.W. 767; Taubert v. City of St. Paul, 68 Minn. 519, 71 N.W. 664. This does not mean, however, that the employment of competent engineers for such purposes relieves the municipality from liability if the system designed and installed results in a trespass upon the lands of another, such as the gathering and casting of large and injurious quantities of surface waters thereon. Tate v. City of St. Paul and Schuett v. City of Stillwater, supra; Robbins v. Village of Willmar, 71 Minn. 403,73 N.W. 1097; Boye v. City of Albert Lea, 74 Minn. 230, 76 N.W. 1131; Weber v. City of Minneapolis, 132 Minn. 170, 156 N.W. 287.

It is equally well settled that a municipality is not liable for damages caused by an overflow of its drainage system resulting from extraordinary rains or floods unless its negligence in failing to properly keep such system open and in good repair concurred in or contributed to the damage. Hanson v. City of Montevideo, 189 Minn. 268, 249 N.W. 46; Power v. Village of Hibbing, 182 Minn. 66, 233 N.W. 597. Finally, where a municipality assumes control and management of its streets and drains, it is required to exercise reasonable care to keep them in good repair. Bohrer v. Village of Inver Grove,166 Minn. 336, 207 N.W. 721.

3. Defendant seeks to escape liability on the ground that the rainfall of May 29, 1942, was an extraordinary storm which could not reasonably have been anticipated by it. As above indicated, the trial court determined this question as a matter of law, notwithstanding that the evidence thereon was in conflict. In my opinion, because of such conflict, this issue was clearly for the jury. McClure v. City of Red Wing, 28 Minn. 186,9 N.W. 767, and Taubert v. City of St. Paul, 68 Minn. 519,71 N.W. 664, supra; National Weeklies, Inc. v. Jensen,183 Minn. 150, 235 N.W. 905. As stated in the latter case (183 Minn. 154, 235 N.W. 907):

"The burden is upon the defendant to prove by a fair preponderance of the evidence that the damage was caused by such a [extraordinary] storm. If you find from the evidence that the storm on the day of plaintiff's injury was so severe, and the amount of water that came on plaintiff's premises in consequence of the storm was so great that plaintiff's premises would have been flooded and the injuries sustained by plaintiff would have occurred even though defendant had not cut the curb or taken up the paving, then your verdict must be for the defendant city."

In Power v. Village of Hibbing, 182 Minn. 66, 233 N.W. 597, it is true, we held as a matter of law that a rainfall of 3.05 inches in 45 minutes and a total of 5.12 inches in less than four hours was an extraordinary rainfall of unanticipated volume. There was testimony there, however, which indicated that the rainfall described had washed out bridges, streets, and roadways, and no conflicting evidence was submitted on this issue. Here, there is substantial testimony, as above set forth, which, if true, would establish that the rainfall of May 29, 1942, while heavy, was not an excessive or extraordinary rain, and, in fact, had been exceeded many times in the previous history of the city. If the jury supported this viewpoint, defendant could not escape liability on the theory that the damage was caused by an unprecedented and extraordinary rainfall.

4. There is also present here a conflict in the evidence with reference to the low point or natural depository for surface waters in this district. Plaintiffs' witnesses, whose testimony for present purposes must be accepted as true, testified that the lowest point and natural depository for surface waters here was some distance to the east of Forty-first and York. Witnesses for defendant, on the other hand, submitted evidence that the lots north of plaintiffs' premises comprised the lowest lands in the area and were the natural depository for surface waters. The credibility of witnesses and the conflict in the evidence on this point, in my opinion, also made these proper questions for the jury's determination. St. P. D. R. Co. v. City of Duluth, 56 Minn. 494, 58 N.W. 159,23 L.R.A. 88, 45 A.S.R. 491; O'Neill v. City of St. Paul, 104 Minn. 491,116 N.W. 114; Schuett v. City of Stillwater, 80 Minn. 287,83 N.W. 180; Bush v. City of Rochester, 191 Minn. 591,255 N.W. 256.

In the Bush case, we approved the submission of this issue to the jury in the following language (191 Minn. 593,255 N.W. 258):

"The spread and diffusion of water over adjacent land isrecognized as a necessary consequence of improvement. What isreasonable use is subject to question and in many cases must bedetermined by the jury upon the facts and circumstances of theparticular case. * * * If a municipality in the improvement of its streets collects surface waters, it is bound both to care for the same when reasonably practicable and to prevent damage to others. * * * The court instructed the jury that plaintiff must submit proof of the existence prior to the building of the graded street of a natural, well-defined channel or an artificial, well-defined channel through which surface waters flowed and must show that the damage to her property could have been avoided by the exercise of reasonable care on the part of defendant. * * * The courtfurther instructed the jury that if there was no channel,natural or artificial, before the improvement and the citydiverted surface water from its natural course and cast thesame upon plaintiff's property in destructive quantities orotherwise failed to exercise reasonable care to avoid injuringplaintiff's property, it would be obliged to respond indamages. * * * The issue was by these instructions fairly submitted." (Italics supplied.)

Here, if the jury should determine that the lots just north of plaintiffs' premises constituted the natural depository of surface waters in this area and that the water falling in the May 29, 1942, storm would have flowed there to the same extent even though the improvements had not been installed by defendant, then, of course, no liability would exist therefor. This question, however, was exclusively for the jury, and in my opinion the majority viewpoint, in making a specific finding on this issue as though it were established by undisputed evidence, arbitrarily disregards the testimony of plaintiffs' witness and clearly usurps the jury's function with reference thereto.

5. Further, there is evidence that the city failed to maintain the sidewalks, curbs, and drainage system installed by it in this district and that its negligence in this respect may have contributed to plaintiffs' damage. Thus, there was testimony that defendant had permitted the sidewalks and curbs at the corner of Forty-first and York to sink below street level so that water from the curb could overflow the same, and that it had permitted the York avenue drain to sink some 15 inches below the level provided for it in the plan of construction, as it extended into Lake Calhoun, which may have caused the mouth of the outlet thereof to become clogged with mud and sand and retarded the discharge of its surface waters into Lake Calhoun. The law is well settled that a municipality, while not an insurer of the safe condition of its sewers, is liable for damages resulting from its failure to exercise ordinary or reasonable care to keep them in repair and free from obstructions. Taylor v. City of Austin, 32 Minn. 247,20 N.W. 157; Buchanan v. City of Duluth, 40 Minn. 402, 42 N.W. 204; Netzer v. Crookston City, 59 Minn. 244, 61 N.W. 21.

Before liability attaches, however, the municipality must have actual or constructive notice of the defects and a reasonable opportunity for remedying them. Taylor v. City of Austin, supra; Pottner v. City of Minneapolis, 41 Minn. 73,42 N.W. 784; Baker v. City of South St. Paul, 198 Minn. 437,270 N.W. 154; Id. 202 Minn. 491, 279 N.W. 211. Here, there was sufficient evidence to submit to the jury for its determination the questions whether the sidewalks, curbs, and drains in this district had become obstructed or in a state of disrepair because of defendant's negligence; whether defendant had actual or constructive notice thereof and a reasonable opportunity for eliminating such defective conditions; and, finally, whether such defective conditions proximately contributed to the damages sustained by plaintiffs.

6. The testimony on all conflicting issues has been outlined. The jury's findings thereon favorable to plaintiffs, in my opinion, find substantial support in the evidence above set forth and should be sustained within the rule of Weber v. City of Minneapolis, 132 Minn. 170, 172, 156 N.W. 287, 288, wherein we stated:

"Our examination of the record leads to the conclusion that the jury were justified in finding that by the improvements * * * the natural flow of the waters collecting at that point was down Forty-fourth street, and from there to Lake Harriet. They were also justified in finding that defendant was negligent in removing those improvements, and thereby changing the natural flow of such water, and diverting it down Upton avenue, without first providing adequate facilities for the same at that point, thus causing the water to flow upon and injure plaintiff's property. It is not a case showing a mere failure of the municipal authorities to protect the property owner from injury from surface water, but their wrongful conduct in diverting such water from a natural course, and casting it upon private property. The evidence upon this subject made a case for the jury."

For the reasons outlined, I dissent from the majority opinion.