Chicago, R.I. & P. Ry. Co. v. Lynch
| Decision Date | 22 November 1913 |
| Citation | 143 N.W. 1083,163 Iowa 283 |
| Parties | THE CHICAGO, ROCK ISLAND & PACIFIC RY. CO., Plaintiff and Appellant, v. MICHAEL LYNCH, Defendant and Appellee, and D. H. WESTBROOK and LEM DICKERSON, Defendants and Appellants, and JOINT DRAINAGE DIS. NO. 3 OF MUSCATINE AND LOUISA COUNTY, Intervenor and Appellant |
| Court | Iowa Supreme Court |
Appeal from Louisa District Court.--HON. W. S. WITHROW, Judge.
SUIT in equity against certain landowners for the purpose of determining whether or not the plaintiff railway company was under obligations to maintain a certain bridge, known as 110 for the accommodation of waters of a stream, known as Whisky creek, and to determine whether it had a right to cast upon the land of certain of the defendants the waters of the creek now flowing upon the land of the defendant Michael Lynch.
Affirmed.
J. L Parrish and Robt. J. Bannister and Carpenter & Hale, for appellant railway company.
L. A Reiley, for appellants Dickerson and Westbrook.
W H. Hurley, for appellant intervener.
W. E. Blake and J. F. Devitt, for appellee.
WITHROW, J., took no part.
The plaintiff is the owner of a railway right of way and track extending east and west through Louisa county, in this state. The defendant Lem Dickerson is the owner of a tract of land lying on both sides of plaintiff's right of way. The defendant Westbrook owns a tract of land lying south of Dickerson's. The defendant Michael Lynch owns a tract of land lying northwest of plaintiff's railway and adjacent to Dickerson's. On the north side of plaintiff's railway track, and to the west of the land owned by Lynch and Dickerson, is a high range of hills out of which flows a stream known as Whisky creek. This stream drains a watershed of about six miles north and south and about three miles east and west and flows through an opening called Whisky hollow. Its line is generally parallel with the right of way of plaintiff company and enters into what is called Muscatine slough. From the hills where the creek emerges, thence to the slough, the land flattens out gradually to the water level of the pond adjacent to the slough. The banks of the creek are deep to the hills, gradually growing shallower as it proceeds towards the east. This channel passes a point on defendant's right of way known as bridge 111, and thence eastward to a point opposite bridge 110. This creek has a steep grade and a swift current and in times of freshet is heavily loaded with sediment and debris. The channel of the creek is eighteen to twenty feet wide and ranges from a point where it enters the slough to eight or ten feet deep where it emerges from the bluffs and has not sufficient capacity to hold the water in times of flood. It is about 1,300 feet from bridge 111 on plaintiff's right of way to bridge 110. At that point the railroad grade is about nine or ten feet high. The old channel of this Whisky creek was practically east and west and parallel with plaintiff's right of way. It subsequently broke through at a point about opposite bridge 111 and thence formed a new channel, running east along the right of way, to a point known as bridge 110. This bridge 110 was formerly a forty-four-foot opening, or about forty feet in the clear between the piers. After the waters of Whisky creek had passed from their old channel and proceeded along the right of way of plaintiff company eastward to a point known as bridge 110, it passed through that opening, before the opening was closed. It broke from the old channel, opposite bridge 111 and about 1,300 feet west of bridge 110. The point where it broke loose from the old channel was about one hundred and fifty or two hundred feet from the right of way. In 1897 or 1898 an iron girder bridge was built at the point known as bridge 110. There was constructed a sort of a wing dam on the east and north of bridge 110, so that the water would not proceed beyond that point along the right of way and to turn it to the south. This bridge 110 was originally built in 1872, and at the time this levee was constructed to turn the water through bridge 110. From the time that this bridge was put in 1872, in ordinary times, outside of extreme freshets, the water in Whisky hollow came down to nearly opposite bridge 111, and then passed along the right of way of the railway company, and went down to bridge 110, and then went across under the railroad and down across Dickerson's field to the south. There was a channel down through Dickerson's field, known as the Smalley ditch improvement. This was in 1879. That ditch extended forty rods southeast below the railroad, the north end of which was at bridge 110. At the lower end of the ditch the waters emptied into a slough or marsh.
The bridge known as 110 was closed by the plaintiff company in 1907. It had been gradually filling prior to that time, but it was then permanently closed so that the waters from the north were not permitted to pass south of defendant railway right of way but were forced either to go east along the right of way or back up to and upon the land north.
This action was brought in equity by the plaintiff company alleging that Whisky creek has changed and is liable to change at any time in high water; that defendant Lynch claims its natural channel is through the old channel at bridge 110 and is threatening suit against the plaintiff unless the bridge is opened; that Dickerson and Westbrook claim that the natural course of the water and drainage is eastward and north of defendant's right of way and deny that its natural flow is through bridge 110. The question is: Ought the plaintiff to be required to open its right of way for the passage of surface and overflow water north of its tracks? It is apparent from the examination of the plats in this case that the natural slope of the ground from...
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