Brous v. Wabash R. Co.

• Decision Date: 03 July 1913
• Citation: 142 N.W. 416,160 Iowa 701
• Parties: BROUS v. WABASH R. CO.
• Court: Iowa Supreme Court

160 Iowa 701

142 N.W. 416

BROUS

v.WABASH R. CO.

Supreme Court of Iowa.

July 3, 1913.

Appeal from District Court, Polk County; Hugh Brennan, Judge.

Action at law to recover damages for injuries to land alleged to have been occasioned by the diversion of flood waters upon the premises of the plaintiff. There was judgment for plaintiff, and defendant appeals. Reversed.Miller & Wallingford and Oliver H. Miller, all of Des Moines, for appellant.

S. B. Allen and A. H. Brous, both of Des Moines, for appellee.

WEAVER, C. J.

As near as the issues may be extracted from the confusion of pleadings, amendments, and substitutes with which the record is burdened, they are as follows: Plaintiff alleges that in the year 1881 the defendant company constructed its right of way over land belonging to herself and other tenants in common who have assigned to her their rights and claims in the premises; that at the time of such construction there was a stream known as Brous creek running diagonally across the roadbed; that defendant then and there diverted the creek from its natural channel, and made the same to run parallel to the roadbed for a considerable distance to a point where it re-entered its natural bed or course. She further alleges that, when flowing in its natural course, said stream did not overflow its banks nor flood the adjoining lands, but that the new channel was constructed along higher levels, with the results that the waters of the stream from time to time overflow the land in question and injure and destroy the crops growing thereon, and that the danger of such overflows has been aggravated and increased by the failure of the defendant to keep said stream in its diverted course free from obstruction. She further alleges that, by reason of such acts and negligence on the part of the defendant, the crops on the lands in question have been injured and destroyed each year from and including 1905 to the year 1911 to an aggregate amount of $3,000, for which she demands judgment. The defendant answers, denying the allegations of the petition, and pleading the statute of limitations. It also alleges that other parties have an interest in the alleged cause of action, and have not been brought into the case either as plaintiffs or defendants. The issues were tried to a jury, and plaintiff recovered judgment in the sum of $275.

1. As it is not claimed that plaintiff failed to make a case for the jury, we shall not prolong this opinion to set out the testimony of the witnesses. It is enough to say that there was evidence from which the jury could find that the railway company--either the defendant or its grantor--did in constructing its roadbed divert the stream from its natural course, and that by reason thereof the adjacent lands have at times been flooded by overflows therefrom. The injury, if any, thus sustained appears to have been to the crops grown or growing on the land as distinguished from any substantial injury to the land itself.

[1] Exception is taken by the appellant to the trial court's instruction upon the measure of plaintiff's recovery in case she was found entitled to a verdict. So far as is necessary to make clear the point of this exception, the instruction reads as follows: “The measure of her damages is the difference between the fair, reasonable market value of the quantity of land which you find was overflowed each year from 1905 to 1910, inclusive, immediately before the overflow, and its fair reasonable market value as shown by the evidence immediately after such overflow.” The rule thus stated cannot be approved. It is to be admitted that it finds color of support in some of our earlier cases, and that the subject is one upon which there has been no little confusion. More recently, however, the court has expressed its adherence to the rule by which when the injury is to growing crops damages are to be measured by their value in the field as they stood at the injury, or their value in matured condition less deductions for the reasonable expense of maturing and marketing the same. Tretter v. Railroad Co., 147 Iowa, 375, 126 N. W. 339, 140 Am. St. Rep. 304;Blunck v. Railroad Co., 142 Iowa, 146, 120 N. W. 737.

[2] The error in the court's charge with respect to the measure of damages is of a material character, and necessarily prejudicial.

[3] 2. There was evidence tending to show that the overflows of which complaint is made were to some extent the result of obstructions accumulating in the channel some distance below the point of overflow and on the premises of a third person, and it is the contention of the appellant that it cannot be held liable for an injury thus occasioned. Stated generally, this is true, and the jury could well have been so instructed with proper qualifications. But if by changing the...