Dairy v. Iowa Central Railway Co.

• Decision Date: 22 December 1900
• Parties: LIZZIE DAIRY, Appellant, v. IOWA CENTRAL RAILWAY COMPANY
• Court: Iowa Supreme Court

84 N.W. 688

113 Iowa 716

LIZZIE DAIRY, Appellant, v. IOWA CENTRAL RAILWAY COMPANY

Supreme Court of Iowa, Des Moines

December 22, 1900

Appeal from Mahaska District Court.--HON. JOHN T. SCOTT, Judge.

PLAINTIFF the owner of a lot in the city of Oskaloosa, upon which she resides, brings this action to recover damages for injury done her property by reason of the construction and maintenance of defendant's railway along and across certain streets in said city. There was a directed verdict and from the judgment rendered thereon against plaintiff for costs she appeals.

Reversed.

Bolton McCoy & Bolton and Dan Davis for appellant.

Geo. W Seevers and L. C. Blanchard for appellee.

OPINION

WATERMAN, J.

Kossuth or F street in the city of Oskaloosa runs north and south, and crosses Third avenue at right angles. Defendant's railway is laid upon Kossuth street. The track is placed upon a considerable embankment, the height of which across Third avenue is 9 or 10 feet. Plaintiff's property is in the angle formed by the two streets. Her lot fronts on Third avenue, and is 60 feet east of Kossuth street. The cause of action set up here is for the obstruction of Third avenue, and because surface water has been turned by the railway embankment back upon plaintiff's property. She claims that no adequate crossing has been provided over Third avenue, and that the natural flow of the surface water has been obstructed.

But four errors are assigned, and three of these, because of their general and indefinite character, we cannot consider. The second assignment is: "The court erred in its rulings upon the evidence to which plaintiff excepted, as shown in this abstract." We have heretofore held such an assignment insufficient. Garrett v. Wells, 63 Iowa 256, 18 N.W. 899; Dungan v. Railway Co., 96 Iowa 161. The third assignment is that the court erred in sustaining the motion to take the case from the jury. The motion contained seven distinct grounds. Under similar circumstances such an assignment has been condemned. Barrett v. Kemp, 91 Iowa 296, 59 N.W. 76; Hasner v. Patterson, 70 Iowa 681, 28 N.W. 493; Shakman v. Potter, 98 Iowa 61, 66 N.W. 1045. The last assignment, which we also regard as insufficient, is to the effect that the court erred in not submitting the case to the jury. See Hokenson v. Mining Co. ^[*] (Iowa), 82 N.W. 1012. We have, then, but one matter to consider, and that is presented in the first assignment of error, which sets up that the court erred in no permitting plaintiff to prove her cause of action based on the obstruction to travel on Third avenue. It will be observed that plaintiff's property is 60 feet distant from the Third avenue crossing, of which she complains. Another fact about which there is no dispute is that defendant's track was laid with the consent of the city, and has been maintained in its present location for some time. It is insisted by defendant that plaintiff suffers no injury that is not common to all the owners whose lots abut on Third avenue. The claim is broadly made that, as plaintiff's property does not abut on the track at the crossing, she cannot maintain an action for damages; and this seems to have been the view taken by the trial court, for all evidence as to the obstruction of Third avenue, and the effect thereof on plaintiff's property, was excluded. Reliance is had by defendant for support in this position principally on the case of Morgan v. Railway Co., 64 Iowa 589. Some language is used in that opinion which, taken alone, tends to sustain defendant's contention, but the distinction between that case and the case at bar must not be overlooked. In the Morgan Case the plaintiff was seeking to recover damages under section 464 of the Code of 1873, which gave cities the right to permit the laying of railway tracks on streets, but provided that no track should be thus laid until after the injury to property abutting on the street was ascertained and paid. It is left an open question in the Morgan Case whether the statute applied to the laying of track across a street merely, and not along it; but it is held that damages may be awarded under section 464 only to property abutting upon the street at the point where such track is laid. In the course of the opinion the court says: "We are aware that actions have sometimes been maintained for damages sustained by reason of a nuisance in a street where the place of the nuisance was simply near the plaintiff's property. But the decisions in those cases have no application to this. The plaintiffs are claiming under a statutory proceeding for the assessment of damages as, substantially,...