Agne v. Seitsinger

• Citation: 52 N.W. 228,85 Iowa 305
• Parties: AGNE v. SEITSINGER.
• Decision Date: 19 May 1892
• Court: United States State Supreme Court of Iowa

85 Iowa 305

52 N.W. 228

AGNE

v.SEITSINGER.

Supreme Court of Iowa.

May 19, 1892.

Appeal from district court, Cedar county; J. H. PRESTON, Judge.

Appeal from judgment sustaining a demurrer to plaintiff's petition.Isaac Landt and Wheeler Moffit, for appellant.

Robert G. Cousins, for appellee.

KINNE, J.

1. Plaintiff in his petition alleges his ownership of certain land in Cedar county, Iowa. That in September, 1858, one Sem Simmons was then the owner of said land, and the person from whom plaintiff purchased. That at said time said Simmons granted to Cedar county the right to a public highway through and across a portion of said land. That said granted road separated a portion of plaintiff's farm from another portion of said farm and buildings thereon. That said grant was made upon the express condition that the grantee should construct and keep in repair the highway therein mentioned, including a bridge upon the same, constructed in such a manner as to allow the grantor and his successors to attach fences to the same, and to allow free passage under the same to grantor and his successors and their stock, in order that grantor and his successors might have the benefit of the water privilege lying adjacent to and on the southeast of said road; that portion of plaintiff's farm lying west and northwest of said road, and consisting of 160 acres, being without other water privileges. Also for the purpose of not obstructing the natural drainage of a part of plaintiff's farm; said open passage beneath said bridge obviating the necessity of plaintiff's constructing gates or bars, and driving his stock from one part of his farm to the other for water and other purposes. That at the time of said grant, and now in times of high water, said bridge was to be and was constructed across an arm of a living stream of water known as “Rock Run.” That the grant was accepted by the county in the conditions named as shown by the record. That in pursuance of said grant, and of its acceptance, the grantee proceeded at once to construct said road and bridge as above described, and they have been continually used by the public, including plaintiff, and kept by the county as a public highway up to June, 1890, at which time a freshet in said run carried a way said bridge. That the passageway under the bridge is the only and natural way of drainage for a large portion of plaintiff's farm, and said passageway has been continually used by plaintiff and his grantors for all the purposes above stated. That defendant has begun to fill up and obstruct said water way and passageway in the road, and under where said bridge was situated, and, though notified so to do by plaintiff, refused to construct the bridge, and leave such open passageway, as heretofore stated, but declares his intention of filling up the passageway, thereby preventing a free flow of water, and depriving plaintiff of the use of said passageway, and the right to attach his fences to said bridge. That defendant, in pursuance of a willful and malicious intent to greatly damage plaintiff's property, did willfully, maliciously, and negligently place and construct said bridge in such a manner as to fill up and obstruct said passageway by sinking down said bridge, and filling dirt, earth, and other material upon the top of it, to the damage of plaintiff, and that said acts are willful, and without warrant of law in the performance of his duties as such road supervisor. Damages are prayed for.

In response to a motion for a more specific statement the plaintiff amended his petition attaching the record entry of the county judge relating to the said grant; and alleging that all the agreement not shown therein, and which is set out in his original petition, was verbal, and was, by accident and mistake, not put in writing and made a part of said record. Defendant demurs to the petition as amended: (1) Because it shows on its face, by the record set out, that the only right reserved to plaintiff's grantors was “to attach a fence to the bridge, which must necessarily be built across Rock run before said road could be made passable,” and it is not shown that defendant has interfered with said right, or with plaintiff's attaching his fence to any bridge. (2) The petition shows on its face that all other alleged conditions upon which said grant is alleged to have been made were verbal, and made more than one year prior to the commencement of this action, and were for the creation of an interest in realty, to wit, a permanent cattle way across the land granted by Simmons for highway purposes. (3) That defendant is the road supervisor of the road and district referred to, and as such had supervision of said road and bridge at the time complained of, and had record notice of said grant, and no notice of any condition or reservations not of record. (4) Petition shows no damage to the plaintiff, except alleged damages for absence of a cattle way, for which defendant is not liable, and is not liable for constructing whatever kind of a bridge he in his discretion saw fit. This demurrer was sustained. Plaintiff stood thereon, and judgment was rendered against him for costs, and he appeals.

2. We think the petition...