Brown v. Cunningham

• Decision Date: 21 May 1891
• Citation: 82 Iowa 512,48 N.W. 1042
• Parties: BROWN v. CUNNINGHAM.
• Court: Iowa Supreme Court

82 Iowa 512

48 N.W. 1042

BROWN

v.CUNNINGHAM.

Supreme Court of Iowa.

May 21, 1891.

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

Action upon an injunction bond given to plaintiff and others. A verdict was had for defendant under direction of the court, and a judgment rendered thereon, from which plaintiff appeals.E. Keeler, C. M. Brown, and Sheean & McCarn, for appellant.

J. W. Jamison, for appellee.

BECK, C. J.

1. The plaintiff and another were engaged in cutting and putting up ice obtained in the Wapsepinecon river,--not a navigable stream, but meandered in the government surveys of the public lands, and therefore its bed was never disposed of by the government by sales of the adjacent lands. It does not appear that the government ever transferred in any manner the bed of the river. The plaintiff and his business associate, not being the riparian owners, entered upon the river, and cut and put in an ice-house a large quantity of ice, and cut and made preparations for moving other ice to their ice-house. It is not claimed or shown that they were trespassers upon the lands of the riparian owners, or that they did not rightfully and lawfully obtain access to the river. The defendant in this suit brought an action to enjoin plaintiff and his associate from gathering the ice, on the ground that he was the owner of the ice. This claim of ownership, we gather from the abstract and arguments, was based upon the fact that he was the riparian owner, and his rights as such extended to and covered the ice in the stream. The cause was tried on the merits, and a decree entered dismissing the petition and dissolving the injunction. Plaintiff herein has acquired all rights in the subject of litigation held by his associate. The defendant herein demurred to plaintiff's petition on the ground that the facts stated do not entitle plaintiff to relief; that the petition fails to show that the plaintiff had any special right to cut the ice other than what is possessed by the public generally, or that he owned the land adjacent to the river at the locality where the ice was cut; and that he acquired no right to the ice by cutting the same. The demurrer was overruled, defendant excepting; but he afterwards pleaded over by answer denying the allegations of the petition. The cause was submitted upon the evidence of plaintiff establishing the facts as we have stated them. Thereupon the court instructed the jury to return a verdict for defendant, holding that upon the undisputed facts plaintiff could not recover.

2. Counsel for plaintiff think that, as defendant did not stand upon his demurrer, the decision thereon was conclusive in this case, and that the district court erred in not holding that the facts proved, which conformed to the allegations of the petition, entitled plaintiff to recover; that a contrary holding conflicts with the decision on the demurrer, which should be regarded as the law of the case. We think that a court is not bound by a prior decision in a case where no rights have been acquired under it, and may change, modify, or overrule it if convinced of its error. Decisions are not to be regarded as unalterable without regard to their correctness. However desirable it may be to have consistency in the decisions of a court in the same case, it is better that the court correct its errors, if in its judgment any have occurred. In this case we shall presume the court below declined to follow the ruling on the demurrer. That ruling will not be regarded as conclusive. Jenkins v. Shields, 36 Iowa, 526;Standish v. Dow, 21 Iowa, 363;Norton v. Knapp, 64 Iowa, 112, 19 N. W. Rep. 867. This rule is applicable when different judges make successive rulings in a case. The last judge making a ruling ought not to be bound by a prior ruling of another judge when he would not be bound by the prior ruling had he made it himself. It is here that courtesy would appear to require the second judge to conform his views to those of the first. But justice may demand quite the contrary, and its demands must overcome the requirements of courtesy.

3. If the facts alleged in the petition do not entitle plaintiff to recover, the defendant may demur, (Code, § 2648, par. 5,) or move in arrest of judgment, (Code, § 2650; Smith v. Railway Co., 59 Iowa, 75, 12 N. W. Rep. 763;Edgerly v. Insurance Co., 43 Iowa, 587;) and when the allegations of the petition are supported by proof, but do not constitute a cause of action, it is competent for the court to instruct the jury that plaintiff cannot recover, (Seaton v. Hinneman, 50 Iowa, 395.) We are advised of no rule prevailing in this state which will authorize a judgment on petition and proof which shows no legal liability on the ground that a demurrer to the petition was overruled, and defendant answered over, denying the allegations of the petition. This is the point presented in the case.

4. We are to determine whether, upon the facts we have recited, defendant is liable upon the injunction bond. It very clearly appears that, as there was a breach of the bond which is not disputed, plaintiff is entitled to at least nominal damages, though he suffered no special injury from being deprived of the ice, for the reason that he had no right to it. The question of plaintiff's right to recover at least nominal damages should have been submitted to the jury.

5. But in our opinion, upon the facts of the case above recited, plaintiff did have a right to and property in the ice he had prepared to remove, and a property right to obtain ice out of the stream pursuant to the plan upon which he was working. The river, while not navigable, was meandered in the government survey. The bed of the stream--the land--never passed out of the proprietorship of the United States government, and the riparian owners had no right or interest therein, and therefore had no exclusive rights to the ice found upon the stream. In support of this position, see Serrin v. Grefe, 67 Iowa, 197, 25 N. W. Rep. 227.

6. The United States retains the title to the bed of the stream, which it holds, not for disposition nor for use in any way that will interfere with the rights of the riparian owners and the public to the water of the stream and its uses for all proper purposes. It cannot be claimed that the government can prevent riparian owners...