(dissenting.)
1. The facts in this case, as found by the trial court, and as set forth in the opinion of the majority of this court, appear to me to contain demonstrable and vital error. The first of the major propositions upon which the plaintiff’s case rests in those findings and in that opinion is:
That the sewer constructed in Sixth street was connected with the sewer system of the city, and was of sufficient capacity to carry away [the] water.
The only evidence in any wise sustaining this is the stipulation of counsel to the effect that for ten or fifteen years past there has been a public sewer on Sixth street opposite this property, and that certain conductors of the church building are connected therewith.' On the *24contrary, there was testimony that in some storms that sewer system was not sufficient to take off all the water,, and that at the corner of Sixth street and Hennepin avenue the water was running three inches deep in the center of Hennepin avenue, because the sewers would not “take it.*’
The second major proposition of plaintiff’s case is even more clearly without support of fact, viz.:
We are also of the opinion that the finding to the effect that the damage would have been avoided had such connection been made prior to the storms is sustained by the evidence. It was testified by certain witnesses for plaintiff that after the sewer connections were made in October, 1902, no water had collected in a pool at the rear of the parish house nor entered plaintiff’s basement.
The principal of three fatal objections to these propositions is that this testimony of the plaintiff and all of the same character was stricken out by the trial court. The record shows that the plaintiff’s counsel, like good lawyers, realized that they must prove this part .of their case, and to that end introduced testimony of a number of witnesses tending to show this effect of the subsequent connection of church conductors with the sewers. To this class of testimony the defendant at a number of places duly objected. The court made its findings without disposing of these objections. On the defendant’s motion for corrected findings it ruled on this class of testimony, sustained the objection, and excluded the evidence; essentially because — and this is the second fatal objection — it is the well-settled rule in this, and practically in all other, states that subsequent acts of a defendant in repairing or changing a situation which had previously wrought damage “are not to be' admitted under any circumstances.” Morse v. Minneapolis & St. L. Ry. Co., 30 Minn. 465, 16 N. W. 358. In his memorandum on this point the trial judge said:
The witness was allowed to answer with the understanding on the part of the court, as I now distinctly recollect, that that class of testimony would be received and its materiality argued by counsel, and then be passed upon by the court. * * * It fol*25lows from this that the same disposition of this testimony (viz.,, that it be stricken from the record) as in the former instances, should be made, and a settled case here amended accordingly.
It would seem to be immaterial - that the defendant may not have-raised the objection to every question on this subject asked every witness. His objection and exception covered this class of testimony, and in good faith the ruling of the court must be held to have excluded it all. The testimony, however, has to my mind no significance- —and this is the third fatal objection to it — because the photographs-received in evidence and other testimony conclusively show that the situation had changed in material respects.
The third major proposition of fact in which error is susceptible of almost mathematical demonstration is this: That a substantial part, of the water doing the damage came from plaintiff’s own premises. The spout on the rear of plaintiff’s -building drained into the sewer surface water from thirty-nine hundred square feet of roof surface. The plaintiff himself testified that the eavetroughs overflowed from a part of defendant’s roofs, which drained an area of eighteen hundred square feet. The eavetroughs and conductors on this part of defendant’s premises are larger than those on the plaintiff’s own premises next to the alley.' It follows that the eaves on the plaintiff’s premises were not sufficient to carry off the water*. There is abundant testimony in addition to photographs to that effect. The trial court recognizes this:
It is true that in heavy rains the eavetroughs and conductors, attached to the rear of the plaintiff’s building have not at all times conducted and carried off into the sewer all the water falling upon its roofs, and hence there has been at times more- or less of an overflow from these roofs.
The overflowing eaves of plaintiff’s building for at least one-fourth of its width clearly must have gone into this area, for the area, wall began about three feet from the easterly end of the building and the windows were forty-two inches wide. In obedience to the law of gravitation, the water from the plaintiff’s building must have joined the water which fell into the area. It is only as to the remaining-*26three-fourtlis of defendant’s overflow to which the court’s argument could possibly apply, viz., that the slope of the alley would have carried these overflowing waters away from the area towards Seventh street. But the testimony of the plaintiff’s own engineer shows that the grade at the spout was 99.9 while the grade at the center of the space between plaintiff’s and defendant’s buildings was 99.67. The spout was more than twelve feet away from this space. Accordingly it appears that at least one-half of the overflow from the plaintiff’s own building went into the area. The wind was blowing at a tremendous rate, driving the water falling from plaintiff’s building directly toward the area.
In vain one looks to find either in the memoranda of the trial court •or in the opinion in this case any satisfactory disposition of the defendant’s further contention that the testimony conclusively shows the plaintiff to have been the author of his own harm to an indeterminate extent. Originally he claimed damages for goods destroyed by water coming through area windows which plaintiff had made on defendant’s own land without defendant’s consent. His audacity abated. No claim is now made for the recovery on this ground. The court, finding for the plaintiff, was faced with the task of showing that the testimony ■did not mix these damages up. There has been no attempt to justify the conclusion reached so far as this vital question is concerned. The dissenting opinion, however, for sake of harmony is not biased on any assertion as to what the record discloses on this point, but will rest only upon the facts involved in the opinion of the majority.
The fourth major proposition of fact in this case concerns the exceptional violent character of the storms which the majority opinion has not denied, but ignored. The testimony on this point shows that in the May storm at one time the rain was falling at the rate of nearly six inches per hour, and .60 of an inch in ten minutes. A gale of wind blew forty-two miles per hour from the south. In the August storm the rainfall was 2.14 inches; 1.92 falling within forty-five minutes. The wind was again blowing hard from the south.
2. So far as the law of the case is concerned, I am at right angles with the majority of the court. The opinion proceeds:
The very object of constructing sewers along public streets adjacent to premises is to afford parties making improvements *27opportunity to. connect therewith, and, if such connections can reasonably be made, upon what rule of law has a party the right to maintain an improvement and refuse to avail himself of this means of getting rid of a common enemy, instead of turning it upon his neighbor’s premises?
The answer is simple: Upon every relevant and recorded rule of law which existed before the majority opinion was written.
(1) On the one hand, the authorities which the court cite in part sustain in a negative way only, and in part deny, its conclusions, (a) They ■consist principally of the Sheehan v. Flynn group of cases, which lay ■down this vague generalization, namely: “A party must so use his own as to not unreasonably or unnecessarily injure his neighbor.” This sounds well, but works confusion. 3 Farnham, W. & W. C. § 889c, p. 2598. It purports much, but prescribes little. On its face it appears to ‘be just, but it may become with undisturbed consistency the basis of as many directly opposite conclusions from the same state of facts as there ■■may happen to be advocates opposing or proposing. In this case it would justify with equal aptness the affirmance or reversal of the trial court. But it cannot be determined from within the four corners of the rule how' this case should be decided, (b) Three specific cases are cited las authority for the conclusions here reached. Of these Werner v. Popp, so far as the facts are concerned, is very similar to the case at "bar. There the owner of land on which a considerable body of surface water gathered at times dug a trench on his own land through which that water passed to a ditch on an ordinary highway, and then through .a culvert by a dry run into a depression on the plaintiff’s land. It is 'to be observed that this decision, which, in effect, carries the common enemy theory to a conclusion extreme, if not unjust, was reached by ■a majority of the court only. The facts here are much stronger for the defendant. Not only did the defendant here turn less than one-third of the water which naturally flowed onto defendant’s premises, ‘but the natural use of hi’s own premises cast such water on a public alley connected with city system of drainage, and therefore like a case of -draining rural surface water on a road having a general state ditch ■system. Moreover, in the Popp case, the waters ran onto plaintiff’s premises through a natural channel; here they got in through the plain*28tiff’s own act in digging an excavation into an alley and in insufficiently protecting his premises against the water entering through that area. The flexibility and danger of the rule in the Sheehan v. Flynns case is well illustrated by its citation, as authority for holding the defendant harmless there for an obvious trespass, and here liable for breach of duty to insure against damage. The second specific case—Philips v. Taylor—is much more nearly in point in logic. Water was carried from the roof of a warehouse by conductors to a drain, thence-ran through a culvert to sandy soil, where ordinarily it was absorbed. By an extraordinary and unusual storm the premises of both parties-were flooded. So the waters here were drained into an alley, which' was ordinarily porous enough to absorb them. Because of the phenomenal nature of the storm in both cases the premises of both plaintiff and defendant were damaged. The rule in both cases should be as Judge-Brown said in the Philips case, that the damage must .be deemed incidental to the use and ownership of private property. And see Miller v. Wilson, 104 Ill. App. 556. (For statement of similar facts, see page-558.) The third specific case—Brown v. Winona & Southwestern Ry. Co.—has little direct significance. What is quoted from it is fairly inconsistent with the proposition it is cited to sustain.
(2) On the other hand, the authorities which the court does not cite, but to most of which its attention has been called, are affirmatively inconsistent with its conclusion, (a) The only case upon the dutv of draining surface water into a sewer denies the existence of such legal duty. Sentner v. Tees, 132 Pa. St. 216, 18 Atl. 1114, approved, in Hall v. Rising (Ala.) 37 South. 586. (b) The overwhelming weight of authority is to the effect that in a city adjoining property owners-have a right to drain surface water onto public streets and alleys, subject to municipal control. In Phillips v. Waterhouse, 69 Iowa, 199, 28 N. W. 539, defendant drained surface water from his building to-an alley- in its rear, whence it flowed to the plaintiff’s premises below grade. In holding that the defendant was not liable to consequent damage the court said: “The [owner of a lot] had the undoubted’ right to erect a building covering his whole lot. Water falling thereon must be discharged therefrom; and, subject to municipal control,, the [owner] had the right to discharge such water on the street or *29alley. He had precisely the same right in this respect as he had the right to walk on the street or alley. He had the further right to so •construct the building as to cause the water to flow and be discharged at one or more places. Of necessity this must be so.” This case was •expressly followed in Hall v. Rising, 141 Ala. 431, 37 South. 587. And see Young v. Leedom, 67 Pa. St. 351; Nelson v. Fehd, 104 Ill. App. 114; Vanderwiele v. Taylor, 65 N. Y. 341.
■ The same principles of liability and immunity on this immediate .subject which apply to individuals apply also to cities. Flagg v. City, 13 Gray, 601; Parks v. City, 10 Gray, 28; Oftelie v. Town of Hammond, 78 Minn. 275, 80 N. W. 1123; Gilman v. Laconia, 55 N. H. 130; Hoyt v. City, 27 Wis. 656. The city has a right to construct and maintain its streets, alleys, and sewers so as to solve municipal problems, including'this one of surface water, according to its own judgment; and if in grading or maintaining a street it casts such water on the premises of an adjoining owner, he cannot recover damages therefor. Such owner may protect himself by building an adequate embankment, by filling his lot high enough to prevent overflow, by •constructing a sufficient building, or otherwise so as in actual fact to k:eep out the offending waters. In Alden v. City of Minneapolis, 24 Minn. 254, Cornell, J., said: “This he could lawfully have done, as lie possessed the common-law right of use and enjoyment in respect to his lot as fully and to the same extent as the city did in respect to its streets. Each had the right to use and improve for any legitimate purpose and in such manner as would protect against the incursion •or accumulation of mere surface waters.” And see Lee v. City of Minneapolis, 22 Minn. 13; St. Paul & D. R. Co. v. City of Duluth, 56 Minn. 494, 58 N. W. 159; Stewart v. City, 79 Mo. 603; Morris v. City, 67 Iowa, 343, 25 N. W. 274; Hoffman v. City, 113 Iowa, 332, 85 N. W. 17; Simpson v. City, 34 Iowa, 568; City v. Lansil, 51 Me. 521.
(3) The plaintiff would have been fully justified in protecting him.self against all incursions of surface water. Township of Blakely v. Devine, 36 Minn. 53, 59 N. W. 342; Middlesex v. McCue, 149 Mass. 103, 21 N. E. 230. He was the judge as well as the author of his own devices. Neither his success nor his failure, nor his diligence nor negligence, can aione be made the basis of his neighbor's liabil*30ity. As to the design of, selection of materials for, and the construction of his area wall and its coping, his neighbor had no choice and no voice. The latter is not responsible for the consequences of the plaintiff’s own instrumentalities. If the plaintiff kept the surface water out, he would have suffered no damage; if he did not, he ought to endure the harm he has not prevented. Mayor v. Dannenberg (Ga.) 39 S. E. 446. And see City of Guthrie v. Mix (Okl.) 49 Pac. 917. The mere fact that he may not have been negligent in constructing his area wall does not make the defendant his insurer against damage by surface water. Defendant took no better care of himself than of his neighbor, and took the same care of both, which was shown by the testimony to have been usual and customary in that neighborhood.
(4) The fact that the plaintiff’s own overflowing eaves contributed largely, although to an indeterminate extent, to the damage for which he seeks recovery, puts him conclusively out of court upon the record in this case. Sloggy v. Dilworth, 38 Minn. 179, 185, 36 N. W. 451.
Since this dissent was Hied, the majority opinion was changed in this; respect, viz., so as to rest the proposition of fact that sewer connections would have prevented damage not on plaintiff’s testimony, as appeared in the original opinion, but on the other testimony. “All testimony of that class” was, however, stricken out by the trial court.