Voligny v. Stillwater Water Co.

MITCHELL, J.

This action is of the same nature, grew out of the same occurrence, and, with one exception hereafter referred to, involved the same facts, as Simpson v. Stillwater Water Co., reported in 62 Minn. 444 , 64 N. W. 1144 , which may be referred to for a fuller statement of the facts, as well as for some of the legal principles involved.

The only difference between the facts of the two cases is that Simpson had nothing to do with the construction of the stone *183 wall referred to in the opinion in that case, and referred to in the pleadings and evidence in this case as the “party wall.” The plaintiff and the defendant united in building this wall about the time, or soon after, Fourth street was graded, and the culvert and well were constructed. One of the defenses interposed was that this “party wall” was constructed according to plaintiff’s own plans and designs, for the purpose of protecting his land from overflow or other dangers from the water that might result from the fill in grading Fourth street across the ravine, the construction of the culvert and the well designed to convey the water in the ravine into and through the culvert; that the wall was negligently and improperly constructed, and that this was the sole cause of the overflow and injuries of which plaintiff complains.

According to the plan adopted by the city in improving Fourth street, all the water from the gutters in that street ran into the ravine, and were conveyed into the well referred to, which of course increased the volume of water in the ravine. During the storm which caused the overflow which resulted in the injury of plaintiff’s premises, the gutters and sidewalk on Fourth street were washed out, and the débris carried down into the ravine. The natural and necessary effect of building up the wall of the well higher than the surface of the bottom of the ravine was to gradually fill up the ravine to the level of the top of the well by the deposit of earth and débris carried down by the water; and there was evidence tending to prove that this was one of the objects in raising the wall of the well above the bottom of the ravine. As originally constructed, the well was not to exceed four feet higher than the natural surface of the ravine; but, as the ravine was gradually filled up with the earth and débris brought down by the water, the city from time to time raised the height of the wall of the well, until at the time of the overflow in 1894 it was about ten feet higher than as originally constructed.

The only questions raised by the assignments of error relate to the action of the trial court in refusing to give certain instructions to the jury as requested by the defendant. We are of opinion that they were each and all properly refused, because they were not applicable to the evidence.

*184 The first was properly refused for the reason that the plaintiff was not a party to the matter of the opening and grading of Fourth street. That was done by the city alone. Indeed, we did not understand counsel as insisting on this assignment of error in his argument.

The third request was properly refused for the reason that there was no evidence, under any view of the case, that at the time the party wall was built plaintiff anticipated or consented that the wall of the well would or should be thereafter raised, and thus subject the “party wall” to increased strain or pressure. The latter part of this request was, therefore, without evidence to which it was applicable, and was calculated to mislead the jury.

The fourth request referred to in the third assignment of error was not urged or insisted upon by defendant’s counsel.

The fifth request was properly refused, for the reason, if no other, that it contained the words “or as it [the well] might afterwards be raised.” Conceding that the evidence shows, or tends to show, that the plaintiff, at the time the “party wall” was constructed, assented to the construction and maintenance of the well as it then existed, and hence to the consequent filling up of the ravine to a level with the top of the well, there is no evidence that he anticipated or consented to the subsequent raising of the wall of the well, and the further filling up of the ravine, and the consequent raising of the height of the water at times of heavy rain.

The seventh request was properly refused for at least two reasons: First. We think there was no evidence that the screen on the top of the well (through which all the water had to flow) was obstructed and closed up by débris washed down from Fourth street. On the contrary, we think the evidence is clear that the screen was closed up by leaves and débris carried down the ravine before any débris was carried down from Fourth street to the well. Second. The maintenance of this vertical well in the natural channel of the water in the ravine, the natural and necessary effect of which was to obstruct the natural flow of the water, was in and of itself a nuisance, unless the opening and screen at the top of the well were kept unobstructed, so as to permit the flow of the water. In maintaining such a structure or obstruction in the channel of *185 the ravine, the city assumed the absolute duty, at its peril, of keeping this screen and artificial channel for the water open and unobstructed.

Judgment affirmed.