Dashner v. Mills Cnty.

• Decision Date: 20 May 1893
• Citation: 88 Iowa 401,55 N.W. 468
• Parties: DASHNER v. MILLS COUNTY.
• Court: Iowa Supreme Court

88 Iowa 401

55 N.W. 468

DASHNER

v.MILLS COUNTY.

Supreme Court of Iowa.

May 20, 1893.

Appeal from district court, Mills county; N. W. Macy, Judge.

Action to recover damages to crops by being overflowed in consequence of the negligent construction and abandonment of a certain ditch by the defendant county. Defendant demurred to the petition, and the demurrer being sustained, and plaintiff electing to stand upon his petition, judgment was entered against him, from which he appeals.Smith McPherson and Shirley Gillilland, for appellant.

E. B. Woodruff and L. T. Genung, for appellee.

GIVEN, J.

Plaintiff, for his cause of action, alleges that he is the owner of certain lands situated in Mills county; that some years ago the defendant county constructed a ditch across or adjoining said lands; that said ditch was negligently constructed, has been abandoned, and is a nuisance; that in two actions in the district court wherein the defendant county was a party said ditch was adjudged to be a nuisance, and the defendant ordered to abate the same by repairing and reconstructing, which the defendant has wholly failed to do; that by reason of such neglect and refusal said ditch, in the spring of 1890, overflowed plaintiff's land, and damaged and destroyed his growing crops thereon, to the value of $1,945; that plaintiff could not replace said crops for that year, nor repair said ditch so as to prevent the damage, without the expenditure of a sum of money greater than the damage; that he filed his claim with the auditor, and demanded payment, which was refused by the defendant's board of supervisors. He attaches, as exhibits, transcripts of the records in the two cases mentioned. The defendant county demurred upon the following grounds: “(1) A county is not liable for a negligent construction of a public ditch. (2) A county is not liable for damages caused by the overflow of a ditch constructed under its direction. (3) The petition does not allege that the county has now, or has had at any prior date, any funds realized from the special assessments provided for by law for the repair of said ditch.” This ditch was constructed under authority given in section 1207 of the Code, which authorizes the construction of ditches “whenever the same will be conducive to the public health, convenience, or welfare.”

The discussion may be reduced to the single question: Is a county liable in damages for negligently constructing or failing to keep open a ditch constructed under authority of said section? The cost of constructing and reopening such ditches is paid for by an equitable apportionment thereof among the owners of the land benefited by the ditch, as...