City of Sioux City v. Simmons Warehouse Co.
| Decision Date | 13 February 1911 |
| Citation | 129 N.W. 978,151 Iowa 334 |
| Parties | CITY OF SIOUX CITY Appellant, v. SIMMONS HARDWARE COMPANY |
| Court | Iowa Supreme Court |
Appeal from Woodbury District Court.--HON. FRANK R. GAYNOR, Judge.
ACTION to abate a nuisance alleged to have been created within the limits of the plaintiff city by the erection by defendant of a culvert or conduit through which the water of a small stream is required to pass, with the result, due to the insufficient size of said culvert or conduit, that at times of high water the streets have been and will in the future be flooded, to the injury of abutting property owners and to the injury of the city itself as the owner of buildings adjacent to said stream. It was also alleged that the defendant had in constructing said culvert or conduit, violated the terms of the city ordinance under which its erection was authorized. On a hearing on the merits the court denied relief to plaintiff, and it appeals. Reversed and remanded.
Reversed and remanded.
F. E Gill, Sam Page, and F. W. Sargent, for appellant.
Ferris & Iddings, Shull, Farnsworth & Sammis, and Lewis S. Haslam for appellee.
OPINION
A stream called Perry creek, rising about fifteen miles north of Sioux City, flows through the city in a tortuous course substantially from north to south, and empties into the Missouri river within the city limits. Fourth street runs east and west, and where it crosses this street there is a bridge connecting it with West Third street. Just south of this bridge defendant's grantor in 1905 erected a warehouse, which defendant is still maintaining, extending across the stream, leaving for the passage under the building of the waters of the stream a conduit, composed of concrete walls and an overhead floor of concrete supported on I-beams of steel, five feet in depth. This conduit connects at its northern end with the city bridge, and was constructed under the authority conferred by a city ordinance by which the city purported to vacate and convey to defendant's grantor a strip of ground fourteen feet wide off the east side of Elm street, which is the street running approximately north and south to the west of and abutting the premises now occupied by defendant. The defendant was already the owner of the lots through which Perry creek ran south of Fourth street; and, making use of the additional ground taken from the east side of Elm street adjoining said lots, defendant's grantor proceeded to erect a building covering its lots and this additional ground, providing for the passage of the stream through and under said building as above described. The ordinance above referred to contained the provision that defendant's grantor, as owner of the property abutting upon the stream, was
Although there was an unusual flood in Perry creek in the summer of 1908, after the building contemplated in the ordinance had been erected, no inadequacy in the conduit provided for the passage of the water in the stream under the building was disclosed. But in the summer of 1909 there was an unusual freshet, causing a still greater volume of water to pass through the conduit, and, as alleged by the city, the conduit proved inadequate, and the water backed up in the stream above the city bridge, so that it overflowed the high banks of the creek within the two blocks north of Fourth street and West Third street, respectively, and extended eastward and westward, to the damage, not only of property owners, but also to the damage of the streets of the city. The city asks that the defendant be required to either remove its building and conduit entirely from the bed of the creek or to enlarge the conduit to such an extent as to correspond to the natural channel of the creek; and in an amendment, setting out the ordinance above referred to, it alleges that defendant's grantor in the construction of the building and conduit did not comply with the terms of the ordinance, in that it constructed the walls of the conduit in such a manner as to make the channel substantially narrower than the width between the concrete abutments, and constructed the roof of the conduit in such a manner that the beams supporting it extend substantially lower than the top of the channel under the city bridge, so the area remaining through which the water of the stream may pass is twenty-five percent less than that afforded for the passage of such water by the city bridge.
I. The defendant questions the right of the city to complain in this action of the conduit through defendant's building as a nuisance; contending, first, that as a matter of fact the conduit in itself is sufficient for all such floods as are reasonably to be anticipated, and that the damage caused by the backing up of the water in the summer of 1909 was due to obstructions below the conduit, which were not within defendant's control, and to debris lodging above the city bridge. As to this question of fact, we find under the record that the debris lodging above the city bridge was not the cause of the overflow, as it appears that the waters of the stream extended beyond its high banks before such debris has accumulated at the city bridge, and there was sufficient outlet for the water below the conduit to have carried it off, had the conduit itself been sufficient to allow the water to pass through. It does appear that after the flood the conduit was found to be partly choked up by trees timbers, and other debris, which had been caught above by the I-beams and thus prevented from passing through. This was not the fault of the city, but the fault rather of the construction of the conduit, which was not only inadequate in size, but by reason of the projection of the I-beams afforded an obstacle...
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