HomeMy WebLinkAbout1985-01-14 Memo, Maintenance of DitchN
MEMORANDUM
TO: Mayor and City
Council
'21ty Ut ULOnU
FROM: Thomas J. Radio
City Attorney
RE: Clean Out of Jentolucci Drainage Ditch
Legal File No. 3857-082
DATE: January 14, 1985
INTRODUCTION
Tile Council has requested a legal opinion regarding
the City's responsibility and liability for the maintenance of
a ditch upon private property owned by Alex and Diane
Jentolucci.
FACTS
Alex and Diane Jentolucci own property at 1295 Briar
Street in Orono. A drainage ditch runs through approximately
tire center portion of their pruperty in an east -west
direction. The ditch, approximately 150 feet in length,
extends from a culvert which runs under Briar Street to a tile
line. This tile line tile', runs westerly into unplatted
property currently owned uy lied r:::yton.
John Gerhardson states tha
rile culvert : the City has maintained
to its outer edge for at least 18 years, with the
most recent repair being three to four years ago. He also
states that the the line was possibly installed by the Cit
the early 19. 's, but does not believe that the City
constructed Y in
to the contrary. ditch. A long time resident, however, insists
The Jentoluccis claims that the ditch and culvert are
causing ponding water in their yard and want the City to clean
Out the ditch tU alleviate the ponding problem.
2-7
ANALYSIS
This situation presents essentially two questions:
(1) Whether the City is responsible for the
maintenance of the ditch; and
(2) Whether the City is responsible or liable for
the ponding of water on the Jentolucci property.
Maintenance of Ditch. The City is not responsible
for the maintenance of private drainage systems within the City
limits. Oro::o Municipal Code, §9.04, subd. 1(b) defines a
"private drainage system" as any "storm sewer, ditch, tile
line, or other facility, together with all appurtenances
thereto, (1) constructed by a private person, or (2) existing
on private property, for the purposes of collecting or
conveying natural precipitation." Subd. 2 of that section
further provides that "it is the responsibility of the owner of
any private drainage system, or the owner of the land upon
which it is constructed, to maintain such system in good and
workable condition '
Hence, pursuant to City ordinance, the Jentoluccis,
not the City, are responsible for the maintenance of the
drainage ditcn.
'Responsibility for Water Runoff. The general rule in
Minnesota regarding the diversion of surface water is that if a
municipality in its work of improving its streets or public
places interferes with the natural flowage of surface water or
fails to take care of it, it is riot liable if the pos essor of
the lower land is no worse off than before. Roche v. City of
Minneapolis, 27 N.W.2d 195, 297-98 (1947). Thus, only if the
presence oT the culvert increases the runoff onto the
Jentolucci land would the City be responsible. John Gerhardson
has stated that in his opinion the same amount of water would
run onto the Jentolucci property, regardless of the presence of
the culvert.
CONCLUSION
Based upon the available information, it does not
appear that the City is responsible for either the maintenance
of the ditch or the presence of the ponding water. As part of
the Crystal Bay Sewer Improvement Project, the City may wish to
have the City Engineer address alternatives to alleviate the
runoff.
0431F
City Form 1985-1
Sanitary Sewer Right
of Entry
Construction Easement
RIGHT OF ENTRY AGREEEMENT
TEMPORARY EASEMENT TO CONSTRUCT SANITARY SEWER IMPROVEMENTS
Sanitary Sewer Project/Crystal Bay
The City of Orono (hereinafter "City") and the undersigned,
(hereinafter "Owners"), in consideration of the sum of One Dollar
($1.00) and other good and valuable consideration paid to Owners
by the City, the receipt and sufficiency of which is hereby
acknowledged, agree as follows:
1. Right to Construct Sewer. The Owners hereby grant to
the City, its successors and assigns, the temporary right and
easement over and across the real property located in Hennepin
County, Minnesota legally described in Exhibit A attached hereto
and located generally on the map attached hereto as Exhioit B
("Property") to use and occupy the Property for the purposes
herein stated, including but not limited to the accomodation of
equipment, tools, materials and excavated earth at all times prior
to June 30, 1986. Said construction easement includes the free
right of the City, its contractors, agents and employees to enter
over, under and upon the Property at all times prior to June 30,
1986 for the purpose of facili►4ating the installation and
construction of the public sanitary sewer improvements on the
lands abutting or adjacent to the Property, and includes the right
with respect to the Property to excavate, fill and grade soil
thereon, to remove trees, bushes, grass ,ind other structures which
interfere with construction, and the right to operate machinery
and equipment on and over the Property, to store machinery and
equipment and materials and supplies thereon in connection with
such construction of public improvements, and to do anything
necessary or useful or convenient for the enjoyment of the
easement herein granted. Following construction, the City will
cause to be removed all machinery, equipment, materials and
supplies and leave the premises in a neat and presentable manner
with all disturbed areas reseeded to grass.
2. Agreement Documents. This agreement consists of this
agreement, Exhibits A and B.
3. Covenant of Ownership. The Owners covenant that they
are the record fee owners of the Property and have legal title
thereto and have lawful right and authority, without restriction.
to convey and grant the right of entry and temporary easement
herein granted.
IN TESTIMONY wHEREO,f', thg parties have hereunto set their
hands this �-'' day of /,,�,,,7 1985.
I�
(Owners)
1 CA I I
Owners)
CITY OF ORONO
By_
Its
STATE OF MINNESOTA )
ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknow edged before e
this 5 day of % 1985, by �� Jiluco•
and ,r.. ,_ I �4 I 4,.,4--C44,.,4, I to
me known to be the person(s) described in, and who executed the
foregoing instrument, and ackowledged that they executed the same
as their free act and deed.
,
MAU
STATE OF MINNESOTA )
ss.
COUNTY OF HENNEPIN )
Rami
The foregoing instrument was acknowledged before me
this day of 1985, by
the of the City of Orono, a
municipal corporation, on behalf of the corporation.
Notary Public
This Instrument Drafted By:
Popham, Haik, Schnobrich,
Kaufman 6 Doty, Ltd. �A5't)(t"'X 42
4344 IDS Center
Minneapolis, Minnesota 55402
5710E
-2-
Parcel Description: Lot 7 and the south half of Lot 6 on Block 3 of the
Crystal Bay Minnetonka Addition. Commencing at the southwest corner of the
northeast quarter of the southwest quarter; thence northerly along :he west
line of said northeast quarter of the southwest quarter 645.46 feet to the
point of beginning; thence continue north along said line 58.3 feet; thence
easterly 208 feet parallel with the south line of the northeast quarter of the
southwest quarter; thence southerly parallel with said west line a distance of
58.3 feet; thence, westerly parallel with the south line of the northeast
quarter of the southwest quarter 208 feet to the point of beginning and there
terminating.
A temporary easement for utility and drainage purposes over, under and across
the southerly 15 feet of the above-described property
EXHIBIT A
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