Hahn v. Miller
| Decision Date | 23 April 1886 |
| Parties | HAHN v. MILLER |
| Court | Iowa Supreme Court |
Appeal from Muscatine Circuit Court.
ACTION for the abatement of a nuisance, and for the recovery of damages caused thereby. The defendant answered that the matters alleged in the petition had been adjudicated in a former action between the parties. The verdict and judgment were for defendant. Plaintiff appeals.
AFFIRMED.
D. C Cloud and Richman, Buck & Russell, for appellant.
J Carskaddan and Brannan, Jayne & Hoffman, for appellee.
Plaintiff and defendant are the owners of adjoining farms plaintiff's farm being situated east of the one owned by defendant. The alleged nuisance consists of an embankment erected and maintained by defendant near the line between the two farms. Plaintiff claims that this embankment obstructs a water-course through which the waters from certain living springs, which arise east of his farm, and that which overflows in wet seasons from certain marshes and sloughs, also lying east of his farm, and the shed or surface water from a large scope of country, flow; and that it causes the waters which otherwise would pass off through said water-course to flow back upon his land, greatly injuring the same, and rendering it unfit for cultivation. It is alleged in the petition that such water-course had existed for more than ten years prior to the twentieth day of December, 1878, and that the waters had flowed uninterruptedly through it, and that it passed through both of said farms; also that since that date defendant, in addition to a dam or embankment which he had theretofore maintained, had erected an embankment about 230 feet long, and, for a portion of the distance, three feet in height; and in an amendment to the petition, which was filed before the trial, it is alleged that since the commencement of the action he has extended said embankment until it is 1,100 feet in length. The action was commenced on the twenty-third of May, 1883. The judgment relied upon by defendant as constituting an estoppel was rendered at the May term, 1881, of the district court of Muscatine county, in an action brought by plaintiff against defendant.
The defendant, on the trial in the circuit court, introduced the pleadings in the former action; also the evidence introduced on the trial, and the instructions given by the court to the jury; also the verdict found by the jury, and the judgment rendered thereon. The petition in that action alleged the ownership by the parties of the same premises described in this petition; also the existence of a natural water-course through the lands described. It also charged that on the twenty-fifth of November, 1878, defendant obstructed said water-course by erecting a dam or embankment across the same at the point where it was intersected by the line dividing the two farms; and that said embankment was three feet high and 120 feet long; also that said embankment had caused the waters of the stream to flow back upon plaintiff's land, and injure the same; and the prayer was for damages for the injury thus occasioned, and for the abatement of the nuisance. The answer in the case was a general denial of the allegations of the petition. The record shows that the case was tried on its merits, and that there was a general verdict for the defendant, on which the court entered judgment. A number of the witnesses examined by the plaintiff on this trial testified on their cross-examination that they were examined on the former trial, and that their testimony related to the same alleged water-course which was in question in the present action, and there was no contradictory evidence on this point. There was evidence, however, which tended to show that the embankment, as it had been maintained by the defendant since the former trial, was some higher and much longer than it was at that time, and that in its present condition it caused more of plaintiff's land to be overflowed than was overflowed while the embankment was maintained in the condition in which it was before the former trial. The circuit court ruled as matter of law that plaintiff was estopped by the former judgment from...
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