City of Ottumwa v. Nicholson
| Decision Date | 23 October 1913 |
| Citation | 143 N.W. 439,161 Iowa 473 |
| Parties | CITY OF OTTUMWA, IOWA, Appellant, v. VIRGINIA M. NICHOLSON, Appellee |
| Court | Iowa Supreme Court |
Appeal from Wapello District Court.--HON. FRANK W. EICHELBERGER Judge.
ACTION to recover of the defendant damages claimed to have been caused by the negligent construction of a sewer--Affirmed.
Affirmed.
Lloyd L. Duke, City Solicitor, for appellant.
Jaques & Jaques and W. H. McElroy, for appellee.
On the 13th day of October, 1910, the plaintiff, Virginia M. Nicholson, filed in the office of the clerk of the district court of Wapello county her petition as follows: That some years ago the defendant erected a stone culvert leading from the street in front of plaintiff's house, to wit, Wapello street, onto and across plaintiff's property; that said culvert is large and was constructed for the purpose of carrying the water which had theretofore flowed in an open ditch along said street and across plaintiff's property under the sidewalk in front of plaintiff's house and over plaintiff's property; that said ditch drains a large territory, and at times of heavy rains, large volumes of water come down through said ditch and culvert and from there on to the Des Moines river; that the said culvert was provided with a stone and cement floor and has been so maintained ever since, and by reason thereof the water flowing through said culvert has, within the past two years, washed out a hole at the lower end of said culvert and washed out a ditch at said place for a long distance and caused the surface of said ditch below said culvert to be lower than the floor of said culvert and to be lower than the surface of the ditch further down the stream, thus causing water to collect in said depression and stand on or near plaintiff's property line; that said water, in the last two years, has collected and stood on or near plaintiff's property line during the entire year and has become stagnant and large amounts of refuse and filthy matter has collected therein, and said water has been covered with a green scum and has become and is a nuisance; that said water standing in said manner is caused by the negligent construction of said culvert and by negligence of said city in putting said culvert in in the manner in which it did and in the failure to keep the ditch open from there on to the river; that in the past two years four members of plaintiff's family have been stricken with typhoid fever, and plaintiffs allege that said stagnant water and filthy deposits standing so near to their well, which was only about fifty feet from said pool, has contaminated their well water and is a direct cause of said typhoid fever; that, with the nuisance as it so exists, the plaintiff's property has been greatly depreciated in value, and plaintiffs aver that they have been damaged in the sum of $ 2,000 by reason of said nuisance.
On November 26, 1911, the defendant filed its substituted answer as follows: That it denies each and every allegation in plaintiffs' petition and denies each and every charge of negligence made therein against it; that, with the knowledge, acquiescence, and consent of the owners of the property, the culvert in question was put in, a part of same being in the street and a part on private property; that there was no negligence on its part in the construction of said culvert or in its maintenance since; that the location of the place where said water is alleged to have been standing is on private property; that from the place in question to Milner street the said ditch runs through private property; that it did not, in anything it did in the locality in question, do anything to increase the quantity of water flowing through said natural drainage ditch or to change the direction thereof; that said culvert is a permanent structure and after it was put in has remained and will remain there permanently; that whatever damages, if any, to the property of the plaintiff caused thereby accrued at the time of the putting in of said culvert and were what the law terms original damages; that said damages, if any, accrued to and in favor of the owner of the property at that time; that the plaintiff did not own said property at said time, and the defendant denies that she is the real party in interest in this case and denies that she has any cause of action against it. Wherefore the defendant demands that this case may be dismissed at the costs of the plaintiff.
Defendant, after the close of the evidence, amended its answer as follows: Comes now the defendant and for the purpose of conforming the pleadings to the proof states: That the said culvert was put in under the supervision of C. R. Allen, its city engineer, and according to plans prepared by him. That he was a thoroughly qualified and experienced civil engineer. That the alleged defect was a defect in the plan of said culvert or the alleged negligence was in the insufficiency in the size of said culvert. That there was no neglect on its part in doing said work, and it is not liable for said alleged defect in the plan of said work or in its insufficiency in the size of said culvert.
Upon the issues thus tendered, the cause was tried to a jury and a verdict rendered for the plaintiff. Upon the verdict so rendered, judgment was entered against the defendant, and from this judgment defendant appeals, assigning numerous errors alleged to have been committed by the court upon the trial of said cause. We will not take up these assignments of errors in the order in which they are presented to us but will consider them in what appears to us to be a logical sequence.
It appears from the evidence that the plaintiff was not the owner of the property alleged to have been injured at the time this culvert or sewer was constructed. Defendant, therefore, at the conclusion of all the testimony, moved that the court direct the jury to return a verdict for the defendant, based on this fact claimed, that, as the nuisance was a permanent one, then the cause of action accrued at the time the culvert was constructed and must have accrued in favor of the then owner of the lot, and, as plaintiff was not then the owner of the lot, he acquired nothing under his purchase except the real estate, and that he was therefore not the owner of the claim for damages and was not the real party in interest.
Much confusion has arisen in the books on this question, and courts have not all occupied the same viewpoint. Courts have held where a wrong complained of is in the nature of a nuisance, which will continue indefinitely without change from any cause but human labor, the damages are original and arise immediately upon the doing of the thing out of which the damage arose and in favor of the then owner of the property, and, a right of action having accrued, it must be brought by the then owner of the property or his assigns, within the statutory period limiting such actions. But we must distinguish between a wrongful or negligent act and the injury which flows from the wrongful or negligent act. If the structure is permanent and can only be changed by the hand of man and will continue in that condition unless so changed, and all the injury which is occasioned by the structure or the condition created is contemporaneous with the negligent or wrongful act producing the condition, then the cause of action arises contemporaneous with the construction, and the damage is original. It originated with, and is contemporaneous with, the wrongful act which produced the condition, and the damages resulting from the injury, of which the injury is the proximate cause, may be recovered once for all in one action, and the measure of the recovery will be the difference between the market value before the condition was created, which constituted the nuisance, and the reasonable market value immediately after. This is another way of saying that, where the injury out of which the damage arises is contemporaneous with and arises immediately out of the wrongful act which produced the condition, the injury being the basis for the cause of action, the cause of action arises immediately upon the resultant injury, which, being contemporaneous with the wrongful act, of course arises immediately upon the doing of the wrongful act which produced the objectionable conditions.
In other words, the wrong or negligence of the party charged gives in itself no right of action to any one. The right of action arises from the wrong or negligence to one who is injured in consequence of the wrongful or negligent act, and the cause of action does not arise until the injury occurs. The party may be ever so wrong in his conduct or negligent therein, yet no cause of action arises in favor of a third person until he is injured by the negligent or wrongful act of the other. The injury is the cause of action out of which the damage arises, and the cause of action accrues only with the injury and is contemporaneous with the injury of which the wrongful or negligent act is the proximate cause.
It is true that, at the time this sewer or culvert was constructed the plaintiff was not the owner of the property alleged to have been injured, but it does not appear that in the original construction of this sewer any damage resulted therefrom to this land. It does not appear that it was injured immediately upon the erection of the sewer or culvert. The injury to the land occurred after plaintiff was the owner of it. The injury to the land is the basis of her cause of action, and her damages grow out of and are measured by the injury. It is true the injury is traceable back to the original wrongful or negligent act, but, until the wrongful or...
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