Bennett v. National Starch Mfg. Co.

• Court: Iowa Supreme Court
• Writing for the Court: ROBINSON, J.
• Citation: Bennett v. National Starch Mfg. Co., 103 Iowa 207, 72 N.W. 507 (Iowa 1897)
• Decision Date: 14 October 1897
• Parties: W. S. BENNETT, Appellant, v. THE NATIONAL STARCH MANUFACTURING COMPANY

72 N.W. 507

103 Iowa 207

W. S. BENNETT, Appellant, v. THE NATIONAL STARCH MANUFACTURING COMPANY

Supreme Court of Iowa, Des Moines

October 14, 1897

Appeal from Polk District Court.--HON. T. F. STEVENSON, Judge.

ACTION in equity to enjoin the maintenance of a sewer on land claimed by the plaintiff, to abate an alleged nuisance, and for other relief. There was a hearing on the merits, and a judgment for the defendant. The plaintiff appeals.

Affirmed.

Day & Corry for appellant.

C. C. & C. L. Nourse for appellee.

OPINION

ROBINSON, J.

The plaintiff is, and has been for many years, the owner of a tract of land now known as "lot numbered 10, of official plat of section 12, in township 78 north, of range 24 west of the 5th P. M." In the year 1870 he sunk on the lot an artesian well, from which he obtained and sold mineral water and in the year 1874 or 1875 he built a sanitarium for use in connection with the well, to which for a time many people resorted. A family residence was also erected a few rods from the site of the sanitarium. For some time prior to the year 1890 the Gilbert Starch Company owned and operated a starch factory, which was located on lot numbered 15 of the official plat of section 12, west of and adjoining the lot owned by the plaintiff. Both lots were bounded on the south by the Des Moines river, which there flows along an irregular course the general direction of which is from west to east. For the purpose of discharging the sewage from its factory into the Des Moines river, the Gilbert Starch Company had maintained an open board sewer which extended from the factory to the river bank. That was well defined and constituted the southern boundary of the two lots we have described, when section 12 was surveyed by the general government; but about the year 1889 the channel of the river in that vicinity seems to have been changed to the southward, and thereafter, and until the time of the trial in the district court, the water in the river, when at an ordinary stage or lower, did not reach the original bank. In the year 1890 the Gilbert Starch Works were transferred to the defendant. A few days later the factory was burned, but was rebuilt in the latter part of the year 1892, and the new factory was put in operation in April, 1893. In December, 1892, the defendant constructed a new sewer by laying a fifteen-inch tile pipe on the bottom of the old one until the end of the latter was reached at the old river bank, and from that point, which was but a few feet west of the west boundary line of the lot of the plaintiff, constructed an extension in a southeasterly direction to the bank of the river as it then existed. That extension of the sewer is now a little more than seven hundred feet in length, and its outlet is four hundred and twenty feet south of the original north bank of the river, and six hundred feet southwest of the sanitarium of the plaintiff. The defendant has used that sewer since April, 1893, and during that time has discharged through it the sewage from its factory. This action was commenced in September of the year 1893, and the trial of the cause was commenced in the district court two years later, and finally concluded the last of October, 1895. The plaintiff claims as follows: (1) That the change in the river channel is permanent, and that by accretion the south boundary of lot 10 has been extended south to the bank of the river as it now flows; that all of the extension of the defendant's sewer which is east of the west boundary line of lot 10 produced to the new bank is on the land of the plaintiff without his consent, and that its maintenance and use on his land constitute a trespass. (2) That the sewage which flows through the sewer is deposited in such manner and in such quantities as to contaminate the water of the river, and impregnate the atmosphere with a stench so great and offensive as to prevent the comfortable enjoyment of the premises of the plaintiff by himself or others, and endanger their health and lives, thereby constituting a nuisance. The district court found that neither of these claims was sustained by the evidence, and rendered judgment in favor of the defendant for costs.

I. We are first required to determine whether the premises in controversy are a part of the river bed, or whether they have become a part of lot 10 by the process of accretion. It is the settled rule in this state that the owners of land bordered by a navigable stream own "only to ordinary high-water mark,--that is, to the edge of the bank,"--and that the whole bed of the river belongs to the public. Musser v. Hershey, 42 Iowa 356. The conveyances through which the plaintiff derived title to his lot described the premises conveyed as bounded on the south by the north bank of the Des Moines river, and, although the river is not now regarded as navigable, the rule which limits the ownership of the plaintiff to land bounded by the ordinary high-water mark applied. Serrin v. Grefe 67 Iowa 196, 25 N.W. 227; Railway Co. v. Porter, 72 Iowa 426, 34 N.W. 286. The appellant does not dispute these propositions,...