Conklin v. City of Des Moines
| Decision Date | 30 September 1918 |
| Docket Number | No. 30257.,30257. |
| Citation | 168 N.W. 874,184 Iowa 384 |
| Parties | CONKLIN v. CITY OF DES MOINES. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; W. S. Ayers, Judge.
Action for damages on account of the flooding of plaintiff's land. Judgment in favor of defendant for costs upon a directed verdict in its favor was entered in the court below. Reversed.S. B. Allen, of Des Moines, for appellant.
H. W. Byers, Eskil C. Carlson, and Earl M. Steer, all of Des Moines, for appellee.
Plaintiff is the owner of a 44-acre tract of land, located south of the Rock Island Railroad tracks and east of Thirtieth street in the city of Des Moines, which is used for agricultural purposes. Considerable land lying northwest thereof was formerly low and subject to overflow. In 1877 or 1878 the owners of this low land, including plaintiffs, for the purpose of draining the same, by joint contribution, constructed an open ditch from a point near the railroad, southeast a distance of several miles intersecting with Four Mile creek. In 1905, the defendant city constructed what is known in the evidence as the Seventh Ward or Fraley ditch, commencing and extending through some large ponds north of the railroad and terminating at a culvert on the north side thereof, immediately opposite the open end of the joint private ditch above mentioned. This ditch was of considerable length and crossed numerous lots in the city not owned by it. Originally, the ponds drained by the Fraley ditch covered considerable territory and, during the rainy season, contained much water, which, after such quantity as could, in the natural course of drainage, flow out, gradually disappeared during the dry season, by the process of absorption and evaporation. In 1909, the board of supervisors of Polk county established a drainage district, the boundaries of which included the plaintiff's, with other, lands south and north of the railroad track. The ditch constructed as a part of this improvement commenced at the outlet of the Fraley ditch, and extended southeasterly substantially along the line of the private ditch above referred to, intersecting with, and emptying into, Four Mile creek. We gather from the evidence that this latter ditch effectually drains plaintiff's and the other lands in the vicinity thereof.
This action was brought to recover damages caused by the alleged increased quantity of water thrown upon plaintiff's land by the Fraley ditch, and also the amount assessed against the same for her portion of the cost of the public drainage improvement. The court sustained defendant's motion, made at the close of plaintiff's testimony, and directed the jury to return a verdict in its favor.
[1] I. One of the grounds of defendant's motion was that the evidence failed to show that the negligence or alleged wrongful act of the defendant in constructing the Fraley ditch was the proximate cause of plaintiff's damages, or that she would not have suffered to the same extent had this ditch not been constructed. The evidence, however, as above stated, showed that the ponds drained by the Fraley ditch covered a considerable area and, at certain seasons of the year, large quantities of water gathered therein; that while a small part of this water may have ultimately passed into the private ditch, and may have occasionally overflowed a small portion of plaintiff's land, yet the jury may well have found that the amount of water thrown thereon by the Fraley ditch was greatly increased, that same was diverted from the natural course of drainage, and that the value of her land, for purposes of cultivation, was materially impaired.
The law is well settled in this state that the dominant owner may, by discharging the same upon his own land into a natural water course, drain surface water upon the land of the servient owner, but cannot gather large quantities of water out of the ordinary and natural course of drainage, and discharge the same upon the owner of the servient estate in largely increased quantities, or at a different place or in a different manner than it would have usually and ordinarily gone in the natural course of drainage to the substantial damage of his lands. Kaufman v. Lenker, 164 Iowa, 689, 146 N. W. 823;Obe v. Pattat, 151 Iowa, 723, 130 N. W. 903;Martin v. Schwertley, 155 Iowa, 347, 136 N. W. 218, 40 L. R. A. (N. S.) 160;Valentine v. Widman, 156 Iowa, 172, 135 N. W. 599;Jontz v. Northup, 157 Iowa, 6, 137 N. W. 1056;Miller v. Hester, 167 Iowa, 180, 149 N. W. 93;Pascal v. Hynes, 170 Iowa, 121, 152 N. W. 26;Thomas v. City, 171 Iowa, 571, 153 N. W. 91;Cowley v. Reynolds, 178 Iowa, 701, 160 N. W. 241;Lamb v. Stone, 178 Iowa, 1269, 160 N. W. 907;Pascal v. Donahue, 170 Iowa, 315, 152 N. W. 605;Durst v. Puffett, 163 N. W. 201;Brightman v. Hetzel, 167 N. W. 89;Pester v. Smith, 167 N. W. 580.
Whether a largely increased quantity of water, diverted from its natural course, was gathered into the Fraley ditch and discharged upon plaintiff's land in such a way as to overflow and injure the same, were questions of fact for the jury, and plaintiff was entitled to have the same submitted thereto. Abundant evidence was offered tending to show that, before the construction of the Fraley ditch, but a small part of plaintiff's tract was subject to overflow, and that thereafter a large portion thereof was frequently overflowed and rendered unfit for cultivation.
[2][3] II. A further ground of defendant's motion for a directed verdict was that no evidence was offered from which the amount of plaintiff's damages, if any, could have been determined by the jury, and that the evidence sought to be introduced upon this point was not based upon the proper measure thereof. The measure of damages, where the nuisance is of a permanent character, is ordinarily the difference in the value of the land immediately before and after the creation of the nuisance. The rule as applied to this class of cases is fully discussed in Irvine v. City, 170 Iowa, 655, 150 N. W. 674, L. R. A. 1916E, 990, and Ottumwa v. Nicholson, 161 Iowa, 473, 143 N. W. 439, L. R. A. 1916E, 983, and need not be further considered in this case.
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