Roche v. City of Minneapolis

¹ Reported in 27 N.W.2d 295. Plaintiffs recovered a verdict of $850 against defendant, the city of Minneapolis, in an action in which they claimed that water seeping through the floor of their basement damaged their property, caused, as they asserted, by the negligence of the city. The court on motion set aside the verdict and ordered judgment for defendant. The appeal is from the judgment entered on the order.

In 1935, plaintiffs built a home on York avenue between Forty-first and Forty-second streets in Minneapolis. It was damaged on May 29 and 30, 1942, by water seeping into the basement from underneath the floor. No water came through the walls. From 1935 until 1942, they suffered no such inconvenience or damage from water. When the house was built, the sidewalk, curb, and sanitary and storm sewers were all in and the street improved.

Between plaintiffs' home and Forty-first street are four lots, the lowest point in the district. All adjoining streets run down toward Forty-first and York. Plaintiffs claim that water gathered on these lots, formed a pond, infiltrated through the soil, and entered their home from underneath.

Originally the whole area was a marsh, most of it a peat bog, extending about two miles, with a natural drainage into Lake Calhoun. The lake is about 3,000 feet from plaintiffs' property.

In 1898, a topographical survey of the whole marsh area, including the present York avenue district, was made for the park board. Soundings were taken and test pits sunk, and the depth of the peat deposit was ascertained, as well as the nature of the material underneath the peat. The swamp was what is commonly called a floating peat bog, with a current of water underneath the peat. One of the crew making this topographical survey, in stepping from hummock to hummock of peat, missed his footing and disappeared into a hole, and although a large excavation was made his body could not be found.

In 1918 several test pits were sunk. At Forty-first street, either at York or Xerxes a block away, they found 6 feet of peat, 3 feet of quicksand, and 13 feet of sand and gravel above a hard bottom. The water in the hole came up to within 2 feet of the surface. The elevation at the top of that hole was 153.8 feet above city datum. The elevation of the water was 151.8.

At the same time, a test pit was sunk near York and Forty-second street, less than a block south of plaintiffs' home. The elevation was 154 city datum. The engineers found 4.5 feet of peat, 1.5 feet of clay, and 14 feet of sand and gravel. The water in the hole came up to within 2 feet of the surface. Plaintiffs' property lies practically between these two test pits. Plaintiffs' lot is a sand point sticking out into the marsh. The elevation of the lot is 154.9 feet on its north side at York avenue and 154.6 feet on its south side. The elevation at the corner of York and Forty-second street is 153.3 feet and at the corner of York and Forty-first street, 153. Thus, plaintiffs' lot is not over a foot and a half above the lots at the end of their block. It has a peat bog on three sides of it. It can hardly be described as a "high nose of ground" or "top of the ridge," as plaintiffs' chief witness describes it. The original official profile map shows that the whole area is practically level country. The corner of Forty-second and York is at an elevation of 153.3 feet city datum; the corner of Forty-first and York is 153; the corner of Fortieth and York, 154.4; and the corner of Thirty-ninth and York, 152. The Geologic Atlas of the United States issued in 1916 shows the area as one big swamp. There is no dispute as to this fact. Adolph F. Meyer, plaintiffs' expert, was asked:

"Q. Do you know that that entire territory was one great big swamp and lake?

"A. It is so shown on the 1916 survey as a swamp, and not as a lake.

"Q. It was a swamp from your plats here in 1916?

"A. It was low ground, but not Mr. Roche's property.

"Q. I mean around in Mr. Roche's district there.

"A. In that district there was a swamp area, * * *."

There can be no dispute that this area was a natural surface-water depository. The contour lines on the official plats show this. Plaintiffs' testimony and that of their chief witness is to the effect that the corner of Forty-first street and York is about the lowest point in the area and that all adjoining streets slope to that corner.

Plaintiffs' expert witness claimed that the city interfered with "a natural watercourse" or "a natural drainage course" by building its streets across a "natural channel" and causing the damages complained of. The official topographical maps and the other maps received in evidence clearly show that no "natural watercourse" or "natural channel" existed and therefore could not be blocked, and that the whole area was a natural water depository. No water was introduced onto plaintiffs' premises that originally did not belong there.

In 1924, the city constructed a storm sewer to help drain this area. It was repaired in 1934. The drainage district covered 370 acres. One of the branches of the sewer pipe, 42 inches in diameter, was laid in York avenue, passing plaintiffs' property. As it approached Lake Calhoun, the outlet, it was 48 inches in diameter. The storm sewer is constructed of 4-foot sections of pipe. The joints are not tight, so that the sewer takes in surface water.

In November 1942, lot 4, next to plaintiffs' lot, was test-pitted. The surface of the ground was 153.8, and the water stood at 148. Thus, the water then stood at 5.8 feet below the surface. In a test pit near Forty-first and York, made at the same time, the surface of the ground was 151.6 feet above city datum, and the water stood at 147.63, four feet below the surface. The surface of the floor in plaintiffs' basement is at an elevation of 149.1. Elevation of the bottom of the storm sewer at a manhole 50 feet north of plaintiffs' lot is 147.1. Thus the basement floor is below the top of the sewer when the sewer is running full of water. Plaintiffs' basement is little more than 6 feet above the level of Lake Calhoun.

1. It is obvious that the water level in this area has been lowered. It seems reasonable that the presence of the storm sewer accounts for such lowering. Without this storm sewer it is not conceivable how the former swamp surface could be used for building sites. The whole of this large swamp or bog area was the depository of the surface water from surrounding country, and this water eventually found its way to Lake Calhoun. The area originally had no natural watercourse, unless the swamp or bog could be called such. This court in St. Paul D. R. Co. v. City of Duluth, 56 Minn. 494, 500, 58 N.W. 159, 160, 23 L.R.A. 88,45 A.S.R. 491, a case dealing with a swamp situation such as here, said:

"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. Plaintiff complains that the city is making 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."

The court asked (56 Minn. 501, 58 N.W. 160, 23 L.R.A. 88,45 A.S.R. 491):

"* * * 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?" and answered its own question: "We think not."

Here, the city has actually constructed a sewer to relieve the swamp area from the effect of the surface water naturally tributary to the swamp. As has been shown, the water level has been lowered from 2 feet below the surface to more than 5 feet. That it has effectively relieved the water situation is further evidenced by the fact that from the time of its construction in 1924 until 1942 no complaint was received by the city as to its sufficiency. When complaint was made on May 29, 1942, the sewer department received on the same day 95 or 97 other complaints of flooding sewers.

Dudley v. Village of Buffalo, 73 Minn. 347, 76 N.W. 44, is very similar to the instant case. Space forbids detailed recital of the facts. There, the village constructed streets on all four sides of a block of which plaintiff owned the north two-thirds and installed certain drains. The court held that a village is not liable for the overflow onto private property resulting from the inadequacy of its drains constructed for the purpose of carrying off surface water from its streets where such property is the natural depository of all the water discharged thereon. The court further held that the evidence did not show that the village, by its drains or otherwise, unnecessarily discharged surface water upon the plaintiff's land where it did not naturally belong. The court said (73 Minn. 350, 76 N.W. 45):

"* * * The plaintiff admits, as he must in view of the undisputed evidence, that if the village had not improved its streets and constructed the drains in question, all of the surface water complained of would have flowed upon his park; * * *.

"It is clear then," the court said, "that the village is not liable for putting in the upper drain, and thereby carrying the water across the street [to plaintiff's premises], because it did not gather the surface water and unnecessarily discharge it in a stream upon the plaintiff's premises where it did not naturally belong. The park was the natural place of deposit of this surface water. In this particular this case is radically different from that of Robbins v. Village of Willmar, 71 Minn. 403,73 N.W. 1097, relied upon by the plaintiff.

"The improvement of the streets and the putting in of these drains by the village was a direct benefit to the plaintiff's premises, as they relieved them in a large part of the surface water naturally flowing upon them; and, if the defendant is liable at all in this case, it must be because it did not do more, and wholly relieve the premises at all times from the burden of surface water naturally resting thereon, by making its drains of sufficient capacity to secure such result. The law imposed no such liability upon the village." (Citing cases.)

As stated, plaintiffs' premises in the instant case were part of a large swamp which was the natural depository of surface water from a large area. The peat bog was saturated with water. The improvements made by the city have lowered the water level to such an extent that the surface of a large part of the swamp has become usable for residential purposes. The only complaint plaintiffs can make is that the municipality did not do more and wholly relieve the premises of surface and infiltrated water.

In a somewhat similar case, Nichols v. Village of Morristown,195 Minn. 621, 623, 263 N.W. 900, this court said: "The trouble with plaintiff is that he acquired property consisting of low and flat land." See, also, Nichols v. Village of Morristown, 192 Minn. 510, 257 N.W. 82.

In 26 Minn. L.Rev. 634, the writer states:

"Regardless of the rule the court purports to follow, it would probably arrive at the conclusion, as it has done, that if the municipality in its work of improving its streets or public places interferes with the natural flowage of surface water or fails to take care of it, it is not liable if the possessor of lower land is no worse off than before. In such a case it need not put in any sewerage system at all, or one adequate to take care of all the water." (Citing cases.)

This is not a case where a municipality in grading its streets blocks the natural channel of surface water 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 not previously flow. Here, there was no natural channel for surface water. It was originally a large floating bog — a natural depository and not a channel. The city did not cast upon plaintiffs' property quantities of water in excess of what had been previously there; in fact, it had so greatly relieved the area of its former water burden as to make it available for use.

2. The duty rests upon a municipality to employ competent engineers to plan and construct its system of streets and sewers, and ordinarily, if it thus acts, it is not liable because of errors of judgment therein. Pye v. City of Mankato,36 Minn. 373, 31 N.W. 863, 1 A.S.R. 671; 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. In the instant case, no one questions the competency of the engineers who planned and constructed the municipal improvements, the efficiency of which is here questioned.

Complaint, however, is made that the storm sewer enters Lake Calhoun through a submerged outlet. The city engineers give two reasons for this kind of construction. One is the aesthetic reason, since Lake Calhoun is part of the park system of Minneapolis; and the other is the lack of sufficient grade through the area drained. Wherever feasible, an above-water surface outlet is preferred. Plaintiffs' expert claims that the submerged outlet retards the flow and lessens the amount of water which may be discharged. He also calls attention to the sand bar which forms in front of the outlet and which he claims blocks the sewer. Of course, during the winter season, when no water comes through the storm sewer, sand accumulates. But apparently during rainfall the sand is washed away so as to permit adequate flowage. The velocity makes it self-cleaning. To substantiate this, in all the years since the sewer was built until May 29, 1942, no complaint about this sewer was made to the city sewer department. Furthermore, there are two manholes in this sewer in the park between Thirty-eighth street and the lake, one on each side of the boulevard. If the outlet should become plugged so as to raise the water in the sewer three feet, the covers of these two manholes would be blown off. Robert A. Huston, assistant city sewer engineer for 15 or 16 years and sewer engineer for 14 years, testified that during all that period he had never heard of these manhole covers blowing off or that he had ever seen any evidence of it. Plaintiffs' damages, it seems, cannot be accounted for by reason of the submerged outlet. There is a drop in the storm sewer from a point opposite plaintiffs' house to the normal level of Lake Calhoun of 4 feet. That does not provide for much fall. To the same extent that the outlet of the sewer would be raised above the level of the lake the fall would be lessened.

There was a heavy rainfall on May 29 and 30, 1942. At the downtown gauge it registered 7.07 inches and at the airport 2.93 inches. This excessive rainfall was caused by a thunderstorm, and the distribution of the amount of rainfall was uneven. Plaintiffs' property is substantially halfway between these points. Just how much fell in the vicinity of plaintiffs' premises cannot be stated. Practically 2 inches fell on May 25. The rainfall for the month was 6.78 inches at the airport and 10.92 inches in the loop district. At the St. Paul airport it showed 11.29 inches for May. It was the heaviest rainfall in St. Paul and Minneapolis during the month of May for over a century. Records of rainfall began at Fort Snelling in 1837. It is fair to assume that at the beginning of the month of May the ground was pretty well saturated from the spring thaws. The peat bog surrounding plaintiffs' lot was unable to absorb the excessive moisture.

No complaint is made that the storm sewer in question did not have proper inlets. In fact, at the intersection of Forty-first street and York avenue, near plaintiffs' premises, there were 12 such.

3. In view of the whole situation, we can see no actionable negligence on the part of the city and are of the opinion that the trial court was right in granting judgment notwithstanding the verdict.

Judgment affirmed.