Dehanitz v. City of St. Paul

BUCK, J.

The defendant, a municipal corporation, demurred to the complaint in this action upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and defendant appeals.

There is a tract of land within the limits of the defendant city which is known as “Kinney, Bond & Trader’s Addition to St. Paul.”' The street on said plat was dedicated to public use, but was never used nor maintained by the city, but it is alleged that for more than 20 years said platted land has been used as an open common by the public. Along the easterly boundary of said tract, bordering upon the westerly shore of the Mississippi river, is a public levee, laid out by the city, part of which is known as “James Street,” dedicated and used as a highway. Extending through this tract of land for a distance of more than a quarter of a mile is a deep slough, which fills during high water, forms a large, deep pond, and has no outlet, and part of this tract is used by the city as a dumping ground for garbage and manure. At the northeasterly end of said slough is a grade made across said slough, about 15 feet wide, leaving a deep hole or basin about 60 feet across in one direction and 75 feet, across in the other direction at the northeasterly end of said slough. Said basin or hole so formed was immediately contiguous to, and encroaching partially upon, the western side of said James street and said levee a.t said point. Said hole or basin was of a depth exceeding 15 feet below the grade of James street and said levee, and exceeding 10 feet below the surface of the ground immediately adjoining and contiguous to said hole or basin.

During the spring of 1897, and up to and until July 3, 1897, and long subsequent thereto, the said slough and the said hole so formed and cut off from said slough by said fill, became filled with water, so that the surface of said water was about even with the surface of the ground immediately adjoining and contiguous to said hole. Prior to July 3, 1897, the said city of St. Paul authorized the public to carry and deposit garbage and manure into said hole for the purpose of filling the same, and large quantities of garbage and manure were, during the said spring and during the months immediately preceding July 3, 1897, and long subsequent thereto, hauled to and deposited upon the northerly side of said slough, and the said hole was not, up to July 3, 1897, filled up, but a large hole or basin about 50 feet across in one direction and 60 feet in the other direction still remained on said date, and filled with water. The said manure and garbage so deposited in said hole had, prior to sáid date, floated upon the surface of the water therein, and formed thereon a crust, covering the entire surface of the water therein; and vegetation, grass and weeds grew upon said crust and surface, leaving a body of water underneath said crust of a depth of more than 10 feet. Said crust and surface formed upon the top of said hole or basin, and had, on said July 3, 1897, the appearance of the ground surrounding and contiguous thereto. A slight and gradual slope from the main traveled portion of James street and levee extended down to the surface or crust formed upon said hole or basin, the said surface or crust so formed on said hole or basin being not to exceed three feet below the grade of James street and levee. The city of St. Paul kept a police officer as watchman to direct the public where to' deposit the garbage and manure, and to warn persons of the danger of going upon this crust, but lie was absent from Ms post when the accident complained of occurred.

It further appears from the complaint that this crust so formed was dangerous to persons crossing said common, and that along the northerly side of the hole were various paths, which had been used by the public in traveling across said common, levee and James street. It further appears that on July 3,1897, plaintiff’s intestate, a girl of the age of 10 years, was walking along the levee, and turned from the levee to one of the paths running along the common for the purpose of going to McMillan’s Packing House; that, mistaking the surface of the hole for solid ground, she followed a path leading from the levee down to the hole, then walked out upon the crust until she reached about the middle of the hole; at this point the crust broke through, and she fell into the water and was drowned.

Upon this state of facts the plaintiff claims that the city is liable, and one of the elements upon which he grounds this liability is that the whole addition was an open common, and that the people had been accustomed to travel over it. But in the complaint there is another material allegation which greatly qualifies this statement, viz., that this hole, slough or basin where the accident occurred was used by the city not once or twice, but generally, as a dumping ground for garbage and manure, and that during the time of freshets and high water this slough filled with water and became a deep pond. It seems to us that this general allegation that it was an open common and traveled by the public is so inconsistent with the specific allegations that the latter must control. It is self-evident that a basin or slough used as a dumping ground for the garbage and manure accumulating in a large city, and subject to be covered by water during every freshet or high water, without an outlet for such water, could not, in the very nature of things, be used as a public or open common. The repulsive features of the place and its surroundings all lead to the conclusion that it could not be used by the public for business, and certainly not for pleasure, but only for a dumping ground as above stated. Traveled paths could not well be formed over this accumulation of filth in low water, and in high water it was certainly unsafe, even for this young girl, only 10 years old. Wherein and just how this slough was used by the public as an open common is not stated. Carriages could not well pass over it, and that pedestrians would use a garbage dumping ground and manure pile as a traveled path is clearly improbable. Hence the allegation that it was an open common used by the public loses its force as an admission by the demurrer when we consider the other facts stated in the complaint.

Not only is this so, but we consider it substantially untrue that this basin where the accident occurred was used by the public as an open common, over which there were traveled paths. This girl had been traveling along James street, turned therefrom, went upon this crust formation, and, when some 25 to 35 feet from said street, fell through this crust, and was drowned. She was not upon a public street, but had left it for the purpose of going to a packing house about a quarter of a mile distant. This hole or basin was some 50 or 60 feet across each way, and when nearly in the center of it the accident occurred.

We are of the opinion that the city is not liable under this state of facts. It does not appear that there was any invitation by the city for the girl to go upon this crust by reason of the manner the ground was used. The nature of the ground and the offensive. material dumped there all tended strongly to show that the place was not used, nor intended to be used, by the public for any purpose other than that stated in the complaint. It is quite evident that she left the public street for her own convenience or pleasure. The city was not using the ground for any purpose which would allure or entice an infant or adult to go thereon, and nothing of the kind was upon the premises.

While it is alleged in the complaint that she followed a path from the levee down to and upon the crust so formed until she reached the middle thereof, where she was precipitated into the water, yet it is not alleged that it was a publicly traveled path, nor that it was ever traveled by any person whatever; and when we consider the further allegation of the complaint that this crust was formed by the garbage and manure floating upon the water we can readily understand the guarded language of the complaint in alleging that it was merely a path, without alleging it to be the one used and traveled by the public.

Nor does it appear what possible inducement there could be for the public to leave the public street, and travel along a path over a floating garbage and manure pile, or upon ground notoriously used for such purpose. The city owed no duty of protection in respect to her going upon this dumping ground or crust as a traveler. Although it kept a watchman there generally, it was under no obligation to do so, and hence no liability arises by reason of his being absent at the time of the accident. It was performing a public corporate duty in removing garbage and manure from the business and residence parts of the city as a protection against disease.

However sad may be the untimely death of this young girl, yet under the facts and the well-settled rules of law the order denying the defendant’s motion for a new trial must be reversed. We have not deemed it necessary to discuss the authorities cited by either counsel, as the facts clearly demand a reversal of the order. It is sufficient to say that the rule laid down in the well-known “turntable cases” has no application to the case at bar.

Order reversed.