Dougherty v. Sioux City, 48492

• Decision Date: 21 September 1954
• Docket Number: No. 48492,48492
• Citation: 246 Iowa 171,66 N.W.2d 275
• Parties: William J. DOUGHERTY, George M. Dougherty, Nellie W. Dougherty, and Ruth Wikstrom, d/b/a Dougherty Storage & Van Co., Appellees, v. SIOUX CITY, Iowa, a Municipal Corporation, Appellant.
• Court: Iowa Supreme Court

Page 275

66 N.W.2d 275

246 Iowa 171

William J. DOUGHERTY, George M. Dougherty, Nellie W. Dougherty, and Ruth Wikstrom, d/b/a Dougherty Storage & Van Co., Appellees, v. SIOUX CITY, Iowa, a Municipal Corporation, Appellant.

No. 48492.

Supreme Court of Iowa.

Sept. 21, 1954.

Rehearing Denied Nov. 19, 1954.

George F. Davis, City Atty., Wm. A. Shuminsky, Sol., Sioux City, for appellant.

Sifford & Wadden, Sioux City, for appellees.

BLISS, Justice.

Since the facts very largely control the determination of this appeal, they should be stated with some fullness. The named plaintiffs are brothers and sisters, operating as a partnership known as Dougherty Storage & Van Company, and own the ground and three-story building thereon at 112 Pearl Street, in defendant city, used by them as a warehouse for the storage of household furniture, merchandise, and other articles of commerce. The building which is of wood construction with an outside veneer of brick, has a fifty-foot frontage to the west on Pearl Street, extends east and west two hundred feet, and has a height of forty-five feet. The foundation of the structure is of stone two feet thick and eight feet high. It has a full basement with a concrete floor, and a height of eight feet, with three floors above, each supported by piers, spaced twelve to fourteen feet apart throughout the building. The piers in the basement rest on stone flags four feet square and two and one half feet thick. The stone foundation walls also rest on rock footings. A concrete loading platform is along the south side of the building and heavy plank platforms extend along the north side, and the west front, of the building. The outer end of the platform on the west side rests on a concrete foundation which abuts on the pavement of Peal Street. The width of this platform is not shown, but from the picture, Exhibit 7, it appears to be about six to eight feet. The building is about fifty years old. All floors and the basement have been used for the storage of heavy merchandise. The weight capacities of the upper floors per square foot, as fixed by the defendant, are respectively, for the first floor 300 pounds, for the second floor 225 pounds, and 150 pounds for the third floor. The building, from testimony and pictures appears to be a substantial structure. There was railroad trackage on the north and the south sides of the building. The track on the south side extends west across Pearl Street.

All of the plaintiffs, other than Ruth Wikstrom, who was too ill to attend the trial, were witnesses. Nellie was the bookkeeper and the office supervisor, Ruth worked in the office, William looked after certain duties in the storage operation, and George attended to the warehouse and its maintenance and repair, and the plumbing.

It was stipulated by the parties that defendant 'is a municipal corporation that owns, maintains and operates the waterworks and water-distribution system in the city, and that it supplies its own needs for water for fire protection and other services, and for the transportation and sale of water commercially at rates fixed by it to users in Sioux City'. It was also stipulated that the water main involved was laid by the defendant; that its depth below the level of the street was approximately five and one half to six feet; that the joint in question was a lead and jute joint; and that the water pressure in this main was approximately 100 pounds per square inch.

It is the contention of defendant that although it installs all its water mains and extensions thereof, and makes all taps or openings therein to make the water available to a private user, the latter must provide for the installation of all pipe lines and make all connections to bring the water from the public main to the property of the user.

The water main of defendant which made water available to plaintiffs' building consisted of separate lengths of circular pipe having an inside diameter of eight inches. One end of each pipe length was made into a bell-like shape, the inner circle of which exceeded eight inches in diameter. This end of the pipe is called the bell end and the other end is called the spigot end of the pipe. The water main was constructed by inserting the spigot end of one pipe into the bell end of another pipe, and then caulking the junction or joint so made, and so repeating the maneuver until the main was completed. This water main was laid in a trench extending north and south in Pearl Street at a distance of between twenty and thirty feet west from the west line of plaintiffs' building. The record does not show when this water main was constructed.

City water was delivered to plaintiffs' building from this main in Pearl Street through just two pipe lines, both of which entered the property underneath the west foundation wall, and about midway between its ends. One of these was a pipe line with an opening six inches in diameter. The west end of this line was tapped into the defendant's main. The size of the pipe required a trench substantially as large as that of the eight-inch main. Plaintiffs hired the Grinnell Company years ago to install this six-inch line. The west end of the pipe line was between five and six feet below the surface of Pearl Street, and its east end, since it passed under the footings of the west foundation wall, was considerably lower than its west end. This pipe line serviced the sprinkler system in plaintiffs' building. It was for fire protection, and hence defendant speaks of it as the 'fire line', and we will so refer to it. After passing under the west foundation wall this fire line was extended for about twenty feet east from the wall, under the basement floor, to a pit in the ground about three or four feet deep, where connection was made with pipes leading to the sprinkler system. There was never any leakage of water from this fire line, and defendant does not contend otherwise.

The second pipe line, and the only one other than the fire line, which supplied city water to plaintiffs' building, was a small lead pipe line five-eighths of an inch in diameter, belonging to plaintiffs, which serviced the toilets, lavatories, and furnished water for drinking. This small line proceeding from a tap in defendant's main line ran along within three or four feet of the fire line. This service line passed through a water meter just inside the west wall of the building and then under the basement floor to the pit in the ground mentioned above. It is the contention of defendant that leakage of water from this small pipe line may have been a concurring cause to the damage, if any, to plaintiffs' building, and that since it was installed by plaintiffs there was no liability on defendant for any damage so caused.

In support of defendant's contention that any damage to plaintiffs' building may have been caused by leakage from this lead pipe line of plaintiffs, defendant offered the testimony of but one witness--its chief witness--John Schoen, general water main foreman in charge of the maintenance crew, 'the work of which is to repair leaks, extend water lines, and so forth.' No member of this crew was called as a witness to corroborate the testimony of the foreman, with respect to this five eighths inch line. He testified: that 'a month or two' before July 5, 1949, he was in the building in connection with a report on a water leak in the building; 'I don't recall definitely where the information came from; * * *. When I first got there there was water coming up above the street in front of the place and upon checking, I found that there was a leak in the service line supplying the building. Each business or residence has two control valves. One is at the main where the connection is made, and the other is toward the building, usually in the parking.' In cross-examination, the witness testified, 'The control box from the small pipe was situated in the street approximately ten feet from the main. Ordinarily these control boxes are in the parkings, but as there was no parking here, it was recessed into the paving so you can get at it this way.' Going back to direct examination, the witness said: 'The water I saw was coming up through the control box and also through cracks in the paving. I inserted a key into the control box and turned the valve but that didn't stop the flow. That indicated that the leak was somewhere between the valve and the main. Then it was necessary to break the paving and dig down to the main to shut it off. * * * Before digging down to the main I went into the building where before the job was completed I had a conversation with George Dougherty. When I got into the basement I did not observe any moisture around the foundation. There was just a trace of moisture on the bottom of the pit below the floor surface where the inside valve of the fire line is located. When I went down into the basement I heard the sound of seeping water. My purpose in going to the basement was to see whether or not there was water coming in onto the two pipes, the small one and the fire line, to try to determine whether the leak might be in the small line or in the fire line. I believe the fire line was 6 inches big. The valve controlling it on the inside was in a three foot deep pit just dug in the basement ground. It was not a concrete pit. When I listened to the small line I heard the sound of escaping water. We determined that the line continued to leak after we shut off the outside control because the water continued to come above the ground. I then had the boys come down and dig it up at the main and shut the valve off at the main. There was no leak in the main or in the valve attached to the main. This is a lead pipe. We didn't uncover it to determine where the leak was. (Italics ours.) However it was somewhere between the main and this other control valve. After I shut off the valve attached to the main, I listened for escaping water and the sound stopped. I had...