City of Waterloo v. Waterloo, C.F. & N. Ry. Co.
| Decision Date | 09 April 1910 |
| Citation | 125 N.W. 819,149 Iowa 129 |
| Parties | CITY OF WATERLOO, Appellee, v. WATERLOO, CEDAR FALLS & NORTHERN RAILWAY COMPANY, Appellant |
| Court | Iowa Supreme Court |
MONDAY APRIL 11, 1910.
Appeal from Blackhawk District Court.--HON. CHARLES E. RANSIER Judge.
ACTION in equity to restrain defendant from interfering with or obstructing the passage of water in an alleged stream or natural water course. There was a decree as prayed, and the defendant appeals.
Affirmed.
Mullan & Pickett, for appellant.
B. F Swisher and Boies & Law, for appellee.
The Cedar River approaches the city of Waterloo from the northwest. As it nears the city boundary, the main channel sweeps around a bend to the eastward, while a lesser channel, known in the record as the "cut-off," flows across the neck of the bend and reunites with the larger stream within the city limits. The defendant's line of railway emerges from the business portion of the city, and extends in a northwesterly direction crossing the cut-off above mentioned. At the time when the road was constructed, this point of crossing was outside of the city limits, but, since that date, the boundary of the municipality has been extended to include the locality in question and for some distance beyond. The island lying between the greater and lesser channels of the river contains about three hundred acres of land, the higher and dryer portion of which has been platted as a park or pleasure ground. Both sides of the principal channel in this vicinity are much resorted to in the summer season by the people of Waterloo and others. Before constructing its road, the railway company obtained a right of way from the owners of property traversed by its line, and waivers of claims for damage caused by overflow of water were also obtained from adjacent owners or some of them. Said road was constructed about the year 1897. No bridge was provided for crossing the cut-off but the roadway was carried over or across it on a solid embankment or fill. Later a public highway was established and opened immediately west of the fill and parallel thereto, and was carried across the cut-off on a wooden bridge erected by the city. A portion of the island is somewhat low and in times of extreme high water has been to a greater or less extent subject to overflow. A considerable part of the highway above mentioned in its course across the island is at times subject to inundation. When the floods are excessive, the waters sometimes break through or over the western bank of the cut-off, and flow over the surface or through swales in a southerly direction, and across a platted addition, to the city known as Westfield, where several manufacturing establishments are located. On the night of March 27, 1906, there was a heavy fall of rain with resulting high water in the streams. It is the claim of plaintiff that, on this occasion, the body of water in the cut-off above the fill made by the railway broke through said barrier, and washed away a portion of the embankment, taking with it the bridge constructed by the city, and otherwise injuring the highway. To prevent the reconstruction of said embankment and to compel the maintenance of an adequate opening therein for the passage of the waters of the cut-off, this suit was thereupon instituted.
The petition sets forth the matters and things hereinbefore mentioned, and alleges that the effect of maintaining the fill constructed by defendant is to obstruct a natural water course; that such obstruction tends to increase the height of the floods above the crossing, and thereby fill the low places with water, which remains after the floods have subsided and creates stagnant pools; that the debris and foul matter thus deposited create unhealthful conditions, and materially interfere with the health comfort, and convenience of residents and visitors in that neighborhood; that the floods so caused injure the public highways, and at times extend to the Westfield addition, depositing mud, sand, and other materials in its streets, and that the conditions complained of will continue indefinitely if the defendant is permitted to continue the obstruction of the cut-off. The defendant denies that the maintenance of the cut-off has caused, or can cause, any injury as alleged in the petition. It further avers that said fill was constructed with the consent of the riparian owners, and that, in fact, the maintenance of said fill has prevented the enlargement of the cut-off, which was otherwise liable to divert the main channel from its long established course, to the great injury of the public as well as of the adjacent owners of land. It also alleges that the filling of said channel was well known at the time by the city and its officers, who permitted the work to be done and the railway to be constructed there without objection or protest, and that the city is thereby estopped from maintaining this action. Other matters are mentioned in the pleadings, but none to which we need here specifically advert. At the close of the testimony, the trial court entered a decree finding for the plaintiff upon the principal fact questions in issue, and that the filling of the cut-off had the effect to raise the waters so held back to an unnatural level resulting in conditions, constituting a public nuisance, by reason of which the city was entitled to an injunction against its maintenance, but, the court not being fully advised as to the extent to which an opening should be made and maintained for the passage of water in the cut-off, an order was...
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