I dissent from the proposition that defendant cannot be held liable unless it was guilty of negligence. The damage here was caused by defendant's acts in interfering with the flow of water in the river by the construction of the road and culverts. While the culverts were adequate to carry off the flow of water ordinarily to be anticipated, they were not in fact adequate to carry off the particular water in question. The fact that the amount of water in question was "unanticipated" does not excuse defendant from liability. Plaintiff's damage was caused nonetheless by the road and the culverts. Liability follows under the plain language of Minn. Const. art. 1, § 13, which provides:
"Private property shall not be taken, destroyed ordamaged for public use, without just compensation therefor first paid or secured." (Italics supplied.)
The constitution puts liability for damaging private property upon the same basis as that for taking it. No one would contend that there would be no liability here for an actual taking. Liability under the constitution for a taking is plain. Liability under the constitution for a damaging is equally plain.
Compensable damaging occurs where there is a physical interference with private property regardless of whether such interference is accompanied by negligence, nuisance, or other actionable wrong. We have held public corporations liable fordamaging private property within the meaning of the constitution where a public improvement caused physical disturbance of private property to *Page 137 the owner's detriment, even though there was no proof of any independent actionable wrong such as trespass, negligence, or nuisance. In re Town Ditch No. 1, 208 Minn. 566, 295 N.W. 47; Lindstrom v. County of Ramsey, 136 Minn. 46, 161 N.W. 222; Sallden v. City of Little Falls, 102 Minn. 358, 113 N.W. 884,120 A.S.R. 635, 13 L.R.A.(N.S.) 790; Vanderburgh v. City of Minneapolis, 98 Minn. 329, 108 N.W. 480, 6 L.R.A.(N.S.) 741; Dickerman v. City of Duluth, 88 Minn. 288, 92 N.W. 1119. We have gone further; we have held that liability under the constitution for damaging private property exists regardless of whether the damage was inflicted by an independent tort.
In Skinner v. G. N. Ry. Co. 129 Minn. 113, 151 N.W. 968, we expressly held in a case like the instant one that the liability is "irrespective of negligence."
In Dickerman v. City of Duluth, 88 Minn. 293, 92 N.W. 1120,supra, we said:
"* * * the proper construction [of the constitution] is that a recovery may be had where private property has sustained a substantial damage by the making and using of an improvement * * * and that it does not require that the damage shall becaused by trespass or actual invasion of the owner's realestate." (Italics supplied.)
Our rule that a public corporation is liable under the constitution for damaging private property by causing physical disturbance of it to the owner's detriment regardless of whether there was any independent wrong such as trespass, negligence, or nuisance is in accord with the authorities elsewhere, which are summed up in 29 C.J.S., Eminent Domain, § 111, p. 921, as follows:
"Under constitutional or statutory requirement ofcompensation for property damaged or injured. [Italics in text.] If the constitutional or statutory provisions provide for compensation where property has been 'damaged,' 'injured,' or 'destroyed' by the exercise of eminent domain, consequential damages are recoverable, and such recovery does not depend onany question of negligence or any question of nuisance. * * * [Italics supplied.] *Page 138
"* * * A compensable damaging or destruction, under these provisions, includes injury necessarily resulting from construction of works for public use and from subsequent maintenance and operation thereof, * * *."
The text is amply sustained by the numerous authorities cited in the footnotes.
I think that the rule of Skinner v. G. N. Ry. Co.supra, that there is liability under the constitution for a damaging of private property "Irrespective of negligence" is the correct one and should not be qualified as is done here. As pointed out in In re Town Ditch No. 1, 208 Minn. 566,295 N.W. 47, supra, the rules applicable to private landowners are not applicable where, as here, the damage is done by a public authority whose liability is fixed by the constitution.