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reasonably have connected the spouts with the rear window. So far as the excavation the sewer. We are also of the opinion that at the rear of the building and area wall the finding to the effect that the damage are concerned, the evidence is ample to rewould have been avoided had such connection fute the charge that plaintiff did not use been made prior to the storms is sustained reasonable care to protect his premises. The by the evidence. It was testified by certain area wall was constructed in the alley, made witnesses for plaintiff that, after the sewer of brick and cement, inclosing an excavation connections were made in October, 1902, no about 18 inches wide and 2 feet deep, and water had collected in a pool at the rear of prior to the May storm was 2 inches above the parish house, nor entered plaintiff's the surface of the ground. The evidence basement. Other testimony to the same ef- shows that the water entered the basement fect was given, but stricken out,—whether on that occasion by flowing over the area rightly or not we need not consider. It wall, which it would not have done except was also conclusively shown that the water for the fact that defendant caused such falling on the roof of plaintiff's building was volume of water to be concentrated in a deduring the entire time connected with the pression in the alley that its first natural sewer system, and that water from the outlet was over the area wall. Upon disbuildings upon the alley and vicinity could covering the fact that the area wall was not not find its way into the basement by rea- of sufficient height, in June following the son of the surface grade. And the evidence May storm plaintiff caused his landlord to tends to show that the only water other raise the area walls of all the windows by than that delivered from defendant's prem- adding a 4-inch cement coping. This, under ises was such as fell from the clouds into the evidence and findings of the court, was the open space between the two buildings a reasonable exercise of care to protect and a small portion of the alley adjacent to plaintiff's premises. During the August the basement window, and from the discon- storm the waters collected with such force nected spout on the parish house. There as to wash out the porous, sandy soil and was a dispute as to whether the gutters all brick of the area wall, thereby flowing overflowed, and some evidence was submitted through and under it, entering the baseby defendant tending to prove that the ment window in a large stream. Plaintiff storms were of such extraordinary character cannot be held negligent in failing, under that the sewers would not have taken care the circumstances, to protect himself by conof it had the spouts been connected; that a structing an area wall of sufficient strength wind was blowing from the south, and some and character to withstand the pressure of water must have been thus driven into the water collected in the manner stated. basement window. All this has been con- The rule with reference to surface water, sidered, and the conclusion of the trial court as stated in Brown v. Winona & S. W. R. Co. must be accepted. Under the evidence the 53 Minn. 259, 39 Am. St. Rep. 603, 55 court was justified in finding that sufficient N. W. 123, has been followed in subsequent of the rain falling during the storms of May cases,

and is follows: When and August would have been carried off by owner improves his land for the purthe sewer system had the connection been pose for which such land is ordinarily made, and so have prevented the damage in used, doing only what is necessary for question.

that purpose, and being guilty of no negHaving determined that the facts as ligence in the manner of doing it, he is not found by the court are supported by the liable because, as an incident of so improvevidence, we come to the consideration of ing, surface waters accumulate and flow in the legal questions involved. As we under streams upon the lands of others. This rule stand defendant's position, conceding the was recently applied in the case of Werner v. facts to be as found by the court, under the Popp (Minn.) 102 N. W. 366, where it was law of this state, an owner has the right to held that the upper proprietor did not necdispose of surface water in any manner in-essarily cause damage to a lower proprietor cidental to the improvement; that defendant by digging a ditch which shortened the had a right to construct the church and par- route of surface waters falling upon his ish house upon its premises, to erect a roof land. In the case of Philips v. Taylor, 93 thereon, and it was no concern of defendant Minn. 28, 100 N. W. 649, it was stated that where the waters were thereby incidentally the party was required to exercise due care, discharged; that, if plaintiff's improvement but not, under all circumstances, to protect was made subsequently, it was his duty to his neighbor. In Sheehan v. Flynn, 59 protect uimself. Plaintiff abandoned all Minn. 436, 26 L. R. A. 632, 61 N. W. 462, claim for damages caused by water entering the rule is stated thus: The common-law the basement through the windows on the rule is modified in this state by the rule east side of his building, and confines him that the party getting rid of surface water self to damages arising from water entering | in the improvement of his own premises

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must so use his own as not unnecessarily tage of the fact that the area wall in quesor unreasonably to injure his neighbor. In tion was extended about 18 inches into the Oftelie v. Hammond, 78 Minn. 275, 80 N. W. alley. If in so constructing the building 1123, attention was called to the fact that plaintiff's landlord infringed upon any of the doctrine of reasonableness was adopted the rights surrendered to the public when in Shechan v. Flynn, 59 Minn. 436, 26 L. R. the alley was dedicated as a highway, those A. 632, 61 N. W. 462; Gilfillan v. Schmidt. questions are not here involved. Presum64 Minn, 29, 31 L. R. A. 547, 58 Am. St. ably, defendant acquired no right, as against Rep. 515, 66 N. W. 126; Jungblum v. Minne an adjacent proprietor, to use the alley as a apolis, V. U. & S. W. R. Co. 70 Minn. 153, sewer to carry off water, other means being 72 N. W.971; and Burnett v. Great Northern reasonably attainable. R. Co. 76 Minn. 461, 79 N. W. 523. There Order asfirmed. is no distinction in the principle applicable te cases of surface water in the country, Jaggard, J., dissenting: where lands are left largely in their natural

1. The facts in this case, as found by state, and in cities, where the land is cut up the trial court, and as set forth in the opininto small lots for the purpose of improve- ion of the majority of this court, appear to ment; but there may be a vast difference in

me to contain demonstrable and vital error. the application of the principle. It all de- The first of the major propositions upon pends upon the circumstances of the partic- which the plaintiff's case rests in those findular case as to what degree of care is re- ings and in that opinion is “that the sewer quired of a party attempting to get rid of constructed in Sixth street was connected surface water upon his premises. It does with the sewer system of the city, and was not follow that because in the country an of sufficient capacity to carry away enough upper proprietor may be permitted to aid water." The only evidence in any wise susthe surface water on his field in its exit taining this is the stipulation of counsel to through a natural channel upon a lower the effect that for ten or fifteen years past proprietor, thereby enabling large volumes there has been a public sewer on Sixth of water in rainy period to accumulate, street opposite this property, and that certhat the same thing can be done in a city in tain conductors of the church building are thickly settled portions, where improve connected therewith. un the contrary, there ments are general, and a common drainage was testimony that in some storms that sewsystem has been provided. Such a system of er system was not sufficient to take off all drainage to carry off surplus water is cal- the water, and that at the corner of Sixth culated to avoid the very difficulties which street and Hennepin avenue the water was give rise to so much conflict between upper running 3 inches deep in the center of Henand lower proprietors in the country. The nepin avenue, wecause the sewers would not very object of constructing sewers along “take it.” public streets adjacent to premises is to af

The second major proposition of plainford parties making improvements oppor- tiff's case is even more clearly without suptunity to connect therewith; and, if such port of fact, viz.; "We are also of the connections can reasonably be made, upon opinion that the finding to the effect that what rule of law has a party the right to the damages would have been avoided had maintain an improvement and refuse to such connection been made prior to the avail himself of this means of geting rid storms is sustained by the evidence. It was of a common enemy, instead of turning it testified by certain witnesses for plaintiff upon his neighbor's premises? The doctrine that after the sewer connections were made of reasonableness and due care applies to in October, 1902, no water had collected in this case, and under the facts found de. the pool at the rear of the parish house nor fendant should have availed itself of the entered plaintiff's basement.” The principal means at hand to prevent injury to plain of three fatal objections to these propositiff's property. It is immaterial that defend- tions is that this testimony of the plaintiff ant first made its improvement. It is not and all of the same character was stricken seriously contended that defendant did not out by the trial court. The record shows have notice of the change in conditions that the plaintiff's counsel, like good law. caused by the improvement of the adjacent yers, realized that they must prove this lot. It was open to casual observation, and part of their case, and to that end introone of defendant's officers frankly admitted duced testimony of a number of witnesses that he was familiar with the situation. tending to show this effect of the subsequent Under such circumstances defendant was reconnection of church conductors with the quired to take notice of the effect liable to sewers. To this class of testimony the debe occasioned by allowing the waters to run fendant at a number of places duly objected. at large. While hardly necessary, it may be The court made its findings without disobserved that defendant cannot take advan- posing of these objections. On the defend

ant's motion for corrected findings it ruled from the easterly end of the building and on this class of testimony, sustained the ob- the windows were 42 inches wide. In obejection, and excluded the evidence; essen dience to the law of gravitation, the water tially because--and this is the second fatal from the plaintiff's building must have objection—it is the well-settled rule in this, joined the water which fell into the area. and practically in all other, states that sub- It is only as to the remaining three fourths sequent acts of a defendant in repairing or of defendant's overflow to which the court's changing a situation which had previously argument could possibly apply, viz., that the wrought damage “are not to be admitted slope of the alley would have carried these under any circumstances.” Morse v. Minne- overflowing waters away from the area toapolis & St. L. R. Co. 30 Minn. 465, 16 N. W. wards Seventh street. But the testimony 358. In his memorandum on this point tho of the plaintiff's own engineer shows that trial judge said: “The witness was allowed the grade at the spout was 99.9 while the to answer with the understanding on the grade at the center of the space between part of the court, as I now distinctly recall, plaintiff's and defendant's building was that that class of testimony would be re- 99.67. The spout was more than 12 feet ceived and its materiality argued by coun away from this space. Accordingly it ap. sel, and then be passed upon by the court. pears that at least one half of the overflow

. . It follows from this that the same from the plaintiff's own building went into disposition of this testimony (viz., that it the area. The wind was blowing at a trebe stricken from the record) as in the for- mendous rate, driving the water falling from mer instances should be made, and a settled plaintiff's building directly toward the area. case here amended accordingly.” It would In vain one looks to find either in the seem to be immaterial that the defendant memoranda of the trial court or in the opin. may not have raised the objection to every ion in this case any satisfactory disposition question on this subject asked every witness. of the defendant's further contention that His objection and exception covered this the testimony conclusively shows the plainclass of testimony, and in good faith the tiff to have been the author of his own harm ruling of the court must be held to have ex to an indeterminate extent. Originally he cluded it all. The testimony, however, has claimed damages for goods destroyed by wato my mind no significance—and this is the ter coming through area windows which third fatal objection to it–because the pho- plaintiff had made on defendant's own land tographs received in evidence and other tes without defendant's consent. His audacity timony conclusvely show that the situation abated. No claim is now made for the re. had changed in material respects.

covery on this ground. The court, finding The third major proposition of fact in for the plaintiff, was faced with the task of which error is susceptible of almost mathe- showing that the testimony did not mix matical demonstration is this: That a sub- these damages up. There has been no atstantial part of the water doing the damage tempt to justify the conclusion reached so came from plaintiff's own premises. The far as this vital question is concerned. The spout on the rear of plaintiff's building dissenting opinion, however, for sake of hardrained into the sewer surface water from mony is not based on any assertion as to 3,900 square feet of roof surface. The plain what the record discloses on this point, but tiff himself testified that the eaves troughs will rest only upon the facts involved in the overflowed from a part of defendant's roofs, opinion of the majority. which drained an area of 1800 square feet. The fourth major proposition of fact in The eaves troughs and conductors on this this case concerns the exceptional violent part of defendant's premises are larger than character of the storms which the majority those on the plaintiff's own premises next. opinion has not denied, but ignored. The to the alley. It follows that the eaves on testimony on this point shows that in the the plaintiff's premises were not sufficient May storm at one time the rain was falling to carry off the water. There is abundant at the rate of nearly 6 inches per hour, and testimony in addition to photographs to that .60 of an inch in ten minutes. A gale of effect. The trial court recognizes this: “It wind blew 42 miles per hour from the is true that in heavy rains the eaves troughs south. In the August storm the rainfall was and conductors attached to the rear of plain- 2.14 inches; 1.92, falling within forty-five tiff's building have not at all times conduct minutes. The wind was again blowing hard ed and carried off into the sewer all the wa from the south. ter falling upon its roof, and hence there 2. So far as the law of the case is conhas been at times more or less of an overflow cerned, I am at right angles with the mafrom these roofs.” The overflowing eaves jority of the court. The opinion proceeds: of plaintiff's building for at least one fourth | "The very object of constructing sewers of its width clearly must have gone into this along public streets adjacent to premises is area, for the area wall began about 3 feet to afford parties making improvements op

portunity to connect therewith, and, if such trated by its citation as authority for hold. connections can reasonably be made, upon ing the defendant harmless there for an obwhat rule of law has a party the right to vious trespass, and here liable for breach of maintain an improvement and refuse to duty to insure against damage. The second avail himself of this means of getting rid specific casePhilips v. Taylor—is much of a common enemy, instead of turning it more nearly in point in logic. Water was upon his neighbor's premises ?” The an- carried from roof of a warehouse by conswer is simple: Upon every relevant and ductors to a drain, thence ran through a recorded rule of law which existed before culvert to sandy soil, where ordinarily it the majority opinion was written.

was absorbed. By an extraordinary and un(1) On the one hand the authorities usuai storm the premises of both parties which the court cite in part sustain in a were flooded. So the waters here were negative way only, and in part deny, its drained into an alley, which was ordinarily conclusions. (a) They consist principally porous enough to absorb them. Because of of the Sheehan v. Flynn group of cases, the phenomenal nature of the storm in both which lay down this vague generalization, cases the premises of both plaintiff and denamely: “A party must so use his own as fendant were damaged. The rule in both to not unreasonably or unnecessarily injure cases should be as Judge Brown said in the his neighbor.” This sounds well, but works Philips Case, that the damage must be confusion. 3 Farnham, Waters, § 889c, p. deemed incidental to the use and ownership 2598. It purports much, but prescribes lit- of private property. And see Miller v. Wiltle. On its face it appears to be just, but son, 104 Ill. App. 557. (For statement of it may become with undisturbed consistency similar facts, see page 558.) The third the basis of as many directly opposite con specific case-Brown v. Winona & S. W. R. clusions from the same state of facts as Co.-has little direct significance. What is there may happen to be advocates oppos- quoted from it is fairly inconsistent with ing or proposing. In this case it would the proposition it is cited to sustain. justify with equal aptness the affirmance (2) On the other hand, the authorities or reversal of the trial court. But it which the court does not cite, but to most of cannot be determined from within the four which its attention has been called, are afcorners of the rule how this case should | firmatively inconsistent with its conclusion. be decided. (b) Three specific cases are (a) The only case upon the duty of draining cited as authority for the conclusions surface water into a sewer denies the existhere reached. Of these Werner v. Popp, ence of such legal duty. Sentner v. Tecs, so far as the facts are concerned, is very 132 Pa. 216, 18 Atl. 1114, approved in Hall similar to the case at bar. There the v. Rising (Ala.) 37 So. 586. (b) The overowner of land on which a considerable body whelming weight of authority is to the effect of surface water gathered at times dug a that in a city adjoining property owners trench on his own land through which that have a right to drain surface water onto water passed to a ditch on an ordinary public streets and alley subject to munichighway, and then through a culvert by a ipal control. In Phillips v. Waterhouse, dry run into a depression on the plaintiff's 69 Iowa, 199, 58 Am. Rep. 220, 28 N. W. land. It is to be observed that this deci. 539, defendant drained surface water from sion, which, in effect, carries the common- his building to an alley in its rear, whence enemy theory to a conclusion extreme, if it flowed to the plaintiff's premises below not unjust, was reached by a majority of grade. In holding that the defendant was the court only. The facts here are much not liable to consequent damage the court stronger for the defendant. Not only did said: “The

(owner of a lot] had the defendant here turn less than one third the undoubted right to erect a building of the water which naturally flowed onto covering his whole lot. Water falling theredefendant's premises, but the natural use on must be discharged therefrom; and, subof his own premises cast such water on a ject only to municipal control, the public alley connected with city system of [owner] had the right to discharge such drainage, and therefore like a case of drain water on the street or alley. He had preing rural surface water on a road having a cisely the same right in this respect as he general state-ditch system. Moreover, in had the right to walk on the street or aller. the Popp Case the waters ran onto plain. He had the further right to so construct tiff's premises through a natural channel; the building as to cause the water to flow here they got in through the plaintiff's own and be discharged at one or more places. Of act in digging an excavation into an alley necessity this must be so.” This case was and in insufficiently protecting his premises expressly followed in Hall v. Rising (1904; against the water entering through that Ala.) 37 So. 587. And see Young v. Leedom,

The flexibility and danger of the rule 67 Pa. 351; Nelson v. Fehd, 104 Ill. App. in the Sheehan v. Flynn case is well illus- | 114; Vanderuiele v. Taylor, 65 N. Y. 341.

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The same principles of liability and immu- | dlesex Co. v. McCue, 149 Mass. 103, 14 Am. nity on this immediate subject which apply St. Rep. 402, 21 N. E. 230. He was the to individuals apply also to cities. Flagg judge as well as the author of his own dev. Worcseter, 13 Gray, 601; Parks v. New vices. Neither his success nor his failure, buryport, 10 Gray, 28; Oftelie v. Hammond, nor his diligence nor negligence, can alone 78 Minn. 275, 80 N. W. 1123; Gilman v. La- be made the basis of his neighbor's liability. conia, 55 N. H. 130, 20 Am. Rep. 175; Hoyt As to the design of, selection of materials v. Hudson, 27 Wis. 656, 9 Am. Rep. 473. for, and the construction of, his area wall The city has a right to construct and main and its coping, his neighbor had no choice tain its streets, alleys, and sewers so as to and no voice. The latter is not responsible solve municipal problems, including this one for the consequences of the plaintiff's own of surface water, according to its own judg. instrumentalities. If the plaintiff kept the ment; and if in grading or maintaining a surface water out, he would have suffered no street it casts such water on the premises damage; if he did not, he ought to endure of an adjoining owner, he cannot recover the harm he has not prevented. Macon v. damages therefor. Such owner may protect Dannenberg, 113 'Ga. 1111, 39 S. E. 446. himself by building an adequate embank. And see Gutherie v. Nix, 5 Okla. 555, 49 ment, by filling his lot high enough to pre- Pac. 917. The mere fact that he may not vent overflow, by constructing a sufficient have been negligent in constructing his area building, or otherwise so as in actual fact wall does not make the defendant his into keep out the offending waters. In Alden surer against damage by surface water. v. Minneapolis, 24 Minn. 254, Cornell, J., Defendant took no better care of himself said: “This he could lawfully have done. than of his neighbor, and took the same as he possessed the common-law right of care of both, which was shown by the testiuse and enjoyment in respect to his lot as mony to have been usual and customary in fully and to the same extent as the city that neighborhood. did in respect to its streets. Each had the (4) The fact that the plaintiff's own overright to use and improve for any legitimate flowing eaves contributed largely, although purpose and in such manner as would pro- to an indeterminate extent, to the damage tect against the incursion or accumulation for which he seeks recovery, puts him conof mere surface water." And see Lee v. clusively out of court upon the record in this Vinneapolis, 22 Minn. 13; St. Paul & D. case. Sloggy v. Dillworth, 38 Minn. 179, R. Co. v. Duluth, 56 Minn. 494, 23 L. R. A. 185, 8 Am. St. Rep. 656, 36 N. W. 451. 88, 45 Am. St. Rep. 491, 58 N. W. 159; Since this dissent was filed, the majority Stewart v. Clinton, 79 Mo. 603; Morris v. opinion was changed in this respect, viz.: Council Bluffs, 67 Iowa, 343, 56 Am. Rep. So as to rest the proposition of fact that 343, 25 N. W. 274; Hoffman v. Muscatine, sewer connections would have prevented 113 Iowa, 332, 85 N. W. 17; Simpson v. damage, not on plaintiff's testimony, as apKeokuk, 34 Iowa, 568; Bangor v. Lansil, peared in the original opinion, but on the 51 Me. 521.

other testimony. “All testimony of that (3) The plaintiff would have been fully class” was, however, stricken out by the trial justified in protecting himself against all court. incursions of surface water. Blakely Twp. v. Devine, 36 Minn. 53, 29 N. W. 342; Mid- Petition for rehearing denied.

NEW HAMPSHIRE SUPREME COURT.

James M. USHER

that the one who signed a memoran

dum for the sale of goods necessary to V. John D. DANIELS.

satisfy the statute of frauds acted as agent for the one who is seeking to enforce the con

tract, so as to permit him to maintain the SAME

action,
v.

(March 7, 1905.)
Arthur T. HOLMES.
(73 N. H. 206.)

XCEPTIONS by plaintiff to rulings of
E

the Superior Court for Rockingham Parol evidence is admissible to show 'County made during the trial of actions

NOTE.-As to admissibility of parol evidence A. 473, and Second Nat. Bank v. Midland Steel to show that maker of note signed only as Co. 52 L. R. A. 307. agent, see, in this series, Keidan v. Winegar, 20 А to admissibility of parol evidence to show L. R. A. 705, and note as to admissibility of relation which parties to non-negotiable inextrinsic evidence to show who is liable as the strument bear to each other, see Young v. maker of a note; also Shuey v. Adair, 39 L. R. | Sehon, 62 L. R. A. 499.

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