Bennett v. Inc. Town of Mt. Vernon

• Decision Date: 13 July 1904
• Citation: 100 N.W. 349,124 Iowa 537
• Parties: BENNETT v. INCORPORATED TOWN OF MT. VERNON ET AL.
• Court: Iowa Supreme Court

124 Iowa 537

100 N.W. 349

BENNETT

v.INCORPORATED TOWN OF MT. VERNON ET AL.

Supreme Court of Iowa.

July 13, 1904.

Appeal from District Court, Linn County; J. H. Preston, Judge.

Action at law to recover damages for the flooding of plaintiff's cellar, due, as is alleged, to the negligence and carelessness of defendants in removing a tile drain and digging a ditch in which water accumulated and found its way through the tile upon plaintiff's property. Defendants denied liability, and interposed certain defenses, which will be referred to in the body of the opinion. Trial to a jury. Verdict and judgment for plaintiff against both defendants, and they appeal. Reversed.Wm. Dennis and Redmond & Stewart, for appellants.

Chas. W. Kepler, for appellee.

DEEMER, C. J.

Plaintiff is the owner of lots 5 and 6, in block 12, in the town of Mt. Vernon. She claims that her grantor, one Leech, with others, obtained permission from the defendant town to lay a tile across Fourth avenue, in said town, adjoining the property in controversy, for the purpose of draining the cellars on their property into an open ditch; that in July of the year 1902 the defendant town employed the defendant Twogood to put in water mains on said Fourth avenue to a depth of six feet, and that, pursuant to said employment, he dug an open ditch in said avenue, opposite plaintiff's property, to a depth of six feet, disconnected the tile leading from her cellar to its outlet, and permitted the ditch to remain open for the period of six weeks; that during the time said ditch was open and the tile disconnected two heavy rains fell, filling the ditch, and causing the water to flow back from the disconnected tile into plaintiff's cellar, filling it with mud and débris of all kinds, and causing damages to the walls and chimneys of her house, and to the fixtures and provisions in the cellar. The negligence charged is the disconnecting of the tile, the digging of the open ditch, and failure to replace the tile and to fill the ditch within a reasonable time. Defendant town pleaded that its codefendant Twogood was an independent contractor for whose acts it was not responsible, and that the damage, if any, to plaintiff's property, was due to violent and unusually heavy rains, which it could not have anticipated or guarded against. It also denied generally the allegations of plaintiff's petition. The defendant Twogood interposed practically the same defenses.

Whether or not plaintiff's grantor had permission from the street and alley committee of defendant town to cross Fourth avenue with his tile is a matter in dispute, and, in our view of the case, it is not necessary to settle this in order to arrive at a correct solution of the questions involved. There is no evidence that defendant town, through its council, gave this permission, and no evidence that the street and alley committee of said council, as such, ever gave Leech this right. Whatever was done was by members of this committee individually, and not as a committee acting together.

Conceding arguendo, however, that the town gave him permission, or that it impliedly consented to it by standing by and seeing the work done, we have to inquire what rights it gave him or his grantee in the premises. There is no statute in this state authorizing towns to grant to individuals the right to the use of their streets for private purposes. These municipalities hold the streets in trust for the public, and cannot put them to any use inconsistent with street purposes. They have no implied power to grant privileges to use the streets for private purposes. The use which it is claimed Leech obtained of the street, through the street and alley committee, was purely for his personal advantage. It did not in any way concern or promote the public health or welfare, but was for the purpose of draining water from his cellar which accumulated therein at times of continuous heavy rains. If the defendant town were a private individual, and it had either expressly or impliedly given plaintiff's grantor permission or license to construct a tile drain over its property, and he had made expenditures of money in reliance upon this license or permission, there are many authorities in support of the proposition that such a license would be irrevocable, and holding that one injured by the wrong or neglect of the licensor may have his damages against him. But this rule does not obtain as against city or town authorities. If it did, they might divert the streets and other public property to private purposes, and estop themselves and the municipalities they represent from making necessary and required improvements. Indeed,...