HomeMy WebLinkAboutRe: water problems � � �, ,��j Q � � s7`
LANGE & ANDERSON
A PROFESSIONAL ASSOCIATION
'Robert J.Lange ATTORiVEYS AT IAW Leslie Allan Gelhar
Donald A.Anderson 8500 NOIZMANDALE I.AKE BOULEVARD Paul M.Gabbert
Jennifer Athanases SUTI'E 1780 ��TM�� teve Duea
Mark J.Schneider MINNFAPOLIS,MIiViVESOTA SSi37 D ORC'V� Mark H.Parsons
TEL(612)921-8500 ��l`—����--Sheri T.Kiesner
'Also Admitted in Wisconsin FAX(612)921�501 Michelle Klingenschmitt
"Also Admitted in Wyoming Michelle Rompf
Legal Assistants
�.�1�N � 6 �.��1
June 25, 1991
Ms. Nina Wildman
Sussex Square Development
745 Spring Hill Road
Wayzata, MN 55391
Re: Tim and Susan Fiillman
Dear Ms. Wildman:
We have been retained by Mr. and Mrs. Hillman to investigate the cause
and liability for water problems in their home and property,
experienced over the last several years. Speaking generally, the
water problems became noticeable about the time you constructed a
water reservoir in your development at the Northwest corner within
less than a few feet of the property line of the Hillmans at 400 Leaf
Street, Long Lake, Minnesota.
We have reviewed the problem through on-site investigation with an
engineer of B.A. Liesch Associates, Inc. (hydrologists - geologists -
environmental scientists) . It was the preliminary opinion of the
hydrologist that the reservoir constructed by your corporation is
causing the problems which the Hillmans have been e�eriencing for
several years. _
Let me give you an idea of the nature and costs of the problems that
the Hillmans have experienced. In early June, the City of Orono �
required them to stop using their septic system drain field. The
Hillmans are required to pump their septic tanks. It is anticipated
that the cost to continue this pumping, pending a resolution of the
high ground water level, partially related to this spring's heavy
rains, will exceed $500 by August of 1991. The Hillman's basement is
equipped with a sump pump system, however, water has been entering
their basement at a flow level in the magnitude of perhaps as much as
60 gallons per hour. There is substantial water damage to the
basement walls, floor and woodwork, and the washer has broken several
times due to moisture. The cost to repair the washer to date is
nearly $200; the washer is presently unusable. Mrs. Hillman is
suffering from a personal injury, yet is required to go to the
laundromat once per week. The basement water and the washing machine
problems have cost the Hillmans several hundred dollars and
considerable grief and aggravation. Preliminary estimates of the cost
to install an appropriate ground water drain system around the home
. 1
" Ms. Nina Wildman
June 25, 1991
Page 2
to deal with the problems caused by your water reservoir is in the
range from $12, 000 -$20, 000. It is also anticipated that the cost of
the hydrological expert will run into several thousand dollars.
With respect to the issue of legal liability, Minnesota law is clear
and long-standing following a landmark English case. There is strict
liability for defendant where he damages another by a thing or
activity inappropriate to the place where it is maintained, in light
of the character of that place and its surroundings. See, Fletcher
v. Rylands, L.R. 1 Ex. 265, 279-80 (1866) ("We think that the rule of
law is that the person who for his own purposes brings on his land and
keeps there anything likely to do mischief if it escapes, must keep
it at his peril, and if he does not do so is prima facie answerable
for all the damage which is the natural consequence if it escapes") ;
Cahill v. Eastman, 18 Minn. 324 (1871) (English precedent was quickly
adopted by Minnesota Supreme Court in this case where an underground
water tunnel broke through into plaintiff 's property) ; Bridaeman -
Russell Co. v. City of Duluth, 158 Minn. 509, 197 N.W. 971 (1924)
(liability for defendant where water was collected in quantity. in an
inappropriate place) .
This type of injury to plaintiff is sometimes referred to as "absolute
nuisance" for which strict liability is found without intent to do
harm and without proof of negligence. See, Filtrol Corp. v. Huahes,
199 Miss. 10, 23 So. 2d 891 (1945) ; Pruitt v. Bethell, 174 N.C. 454,
93 S.E. 945 (1917) ; De Vaughn v. Minor, 77 Ga. 809, 1 S.E. 433 (1887) ;
Alabama Western R. Co. v. Wilson, 1 Ala.App. 306, 55 So. 932 (1911) ;
Smith v. Board of County Road Comm'rs, 5 Mich.App. 370, 146 N.W.2d 702
(1966) .
Cases also include those where water is allowed to percolate from an
inappropriate place. See, Pixley v. Clark, 35 N.Y. 520 (1866) ;
Goodyear Tire & Rubber Co. v. Gadsden Sand & Gravel Co. , 248 Ala. 273,
27 So. 2d 578 (1946) ; International & G. N.R. Co. v. Slusher, 42
Tex.Civ.App. 631, 95 S.W. 717 (1906) ; City of Barberton v. Miksch, 128
Ohio St. 169, 190 N.E. 387 (1934) . -
Preli�inary research �hrough the offire of the Zoning Administrator,
City of Orono, strongly suggests that the reservoir is not in -
compliance with City regulations and the terms and conditions of the
grant of the subdivision plat.
I sincerely request you promptly respond to this letter indicating
your responsibility and commitment to a fair and practical solution
to the water problems.
Very truly yours,
LANGE � ANDERSON, P.A.
���
v 'Duerr �--
Attorne Law
cc: Mr. and Mrs. Tim Hillman
Jeanne Mabusth, City of Orono
Jim DeLambert, B.A. Liesch Associates, Inc.