Fitzgibbon v. W. Dredging Co.

• Decision Date: 29 September 1908
• Citation: 141 Iowa 328,117 N.W. 878
• Parties: FITZGIBBON v. WESTERN DREDGING CO. ET AL.
• Court: Iowa Supreme Court

141 Iowa 328

117 N.W. 878

FITZGIBBON

v.WESTERN DREDGING CO. ET AL.

Supreme Court of Iowa.

Sept. 29, 1908.

Appeal from District Court, Harrison County; A. B. Thornell, Judge.

Action at law to recover damages to crops by overflow occasioned by the alleged negligence of defendants. Judgment for plaintiff, and defendants appeal. Reversed.C. W. Kellogg, for appellants.

J. S. Dewell, for appellee.

WEAVER, J.

The counties of Harrison and Pottawattamie, Iowa, having by appropriate actions of their respective boards of supervisors established a drainage district embracing lands in both jurisdictions, the contract for excavating the required ditch was let to the defendants. At the point involved in this controversy the course of the ditch is along the general course of a waterway known as “Willow creek,” but, as said channel is very crooked, the ditch in places cuts across its loops and bends, shortening the route of its flow. The general situation and the location of plaintiff's land with reference to the ditch are made reasonably clear in the accompanying plat:

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Plaintiff's demand for a recovery in this action is based upon the theory that defendant in constructing the ditch and working in a southwesterly direction down the course of the stream cut through its banks at the point marked A on the plat, and in so doing negligently obstructed the channel, and, after cutting through the southwesterly bank failed to restore or close it against the escape of the waters of the creek into the ditch, and failed to protect the adjacent lands from the resulting overflow by providing an outlet or escape therefor into the creek below in advance of the dredge or by other reasonable means protecting such lands from injury. It is further claimed that, by reason of such negligence, the water from the creek swollen by storm passed into the ditch and overflowed its banks, and extended westward across the land of an intervening owner to the land of the plaintiff, and caused the injury of which complaint is made. The allegations of negligence and damage are denied by the plaintiff. There is substantial harmony in the testimony as to many of the material facts to be considered, and the arguments of counsel are directed in the main to questions of law which they believe to be involved in the appeal. Of these we think it necessary to discuss the following only:

Among other things, the court charged the jury as follows: “As before stated, it appears without conflict that the defendants were not acting wrongfully or illegally in digging the ditch in question, but were doing it under the authority of law; and it further appears that at the time of the flood in question, and at the time the defendants cut the banks of Willow creek, the ditch was being dug by defendants on the line and substantially according to the plan adopted by the counties in providing for said ditch. Under such circumstances, the defendants had the right to cut the banks of Willow creek, and their act in so doing was not illegal nor negligent. But if when taking into account, so far as shown by the evidence, the flow of water in the creek, and all that was known to the defendants, or ought to have been known to them in the exercise of reasonable care upon their part, as to what floods were likely to occur along said stream and ditch before they would again reach said creek at a point lower down in the construction of said ditch, it appears from the evidence that reasonable prudence would have dictated, when they cut the bank of the creek and crossed same with the ditch, that they should have closed up the opening thus made in the bank of the creek with a dam, or should have provided some outlet ahead of their dredge boat to carry the flood waters likely to come down the ditch, and thereby prevent same from flooding the lands adjoining or near the ditch, then it was their duty to do so, and if, under such circumstances, it appears that they failed to build such dam or to provide such outlet, such failure on their part would constitute negligence.” The central thought of this instruction, that in performing their contract it was defendant's duty to use reasonable care in the manner and method of its performance to avoid injury to the adjacent lands, is undoubtedly correct. It is equally...