Harvey v. Mason City & Ft. D. R. Co.
| Decision Date | 18 January 1906 |
| Parties | HARVEY v. MASON CITY & FT. D. R. CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Calhoun County; Z. A. Church, Judge.
Action at law to recover damages. There was judgment for defendant, and plaintiff appeals. The material facts are stated in the opinion. Reversed.Gray & Gray and Frick & Crandall, for appellant.
Healy Bros. & Kelleher and E. C. Stevenson, for appellee.
The plaintiff is and for many years has been the owner of a quarter section of land in Calhoun county, Iowa. The land is somewhat low and in its natural condition there is a shallow pond or slough of some 10 or 15 acres in extent near the western boundary. The natural slope and drainage of most of the quarter section and of some of the adjacent lands is in the direction of this pond, the outlet of which was to the west across the highway bounding the tract on that side. In the year 1902 the defendant company, by condemnation or by purchase, secured a right of way and constructed its railroad across the farm and through the pond near its outlet substantially as shown upon the accompanying diagram:
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The track across the premises is laid upon an embankment or fill at a height of about six feet above the pond. In constructing the roadbed defendant attempted to provide for the escape of the drainage from the pond in the direction of its natural flow by putting in a tile culvert. The tile is 24 inches in diameter laid at the bottom of the fill, the exposed ends being reinforced and strengthened by cement work. There is no suggestion on part of the defendant that this culvert was intended as a temporary makeshift, or that it desires or proposes to substitute another of other material or of greater capacity. On September 25, 1903, plaintiff instituted this action. In addition to the matters hereinbefore stated, her petition alleges that the culvert which we have described is wholly insufficient to carry off the water which would otherwise escape in that direction in times of flood, and that by reason of its incapacity the water has been set back, causing injury to her land and crops, for which she seeks a recovery in damages. The defendant answered in denial. There were other counts in the petition presenting other claims on which issue was joined, but none of these latter issues are involved in this appeal, and we shall dispose of it as if the claim first mentioned was the only one considered in the court below. At the close of the testimony on part of plaintiff, the defendant presented a motion for a directed verdict in its favor on the grounds (1) that no proper proof of damages had been offered by the plaintiff, and (2) that plaintiff by herself or by her agent had contributed to the injury for which she was asking damages. The motion was sustained, and it is from the judgment entered upon the directed verdict that plaintiff appeals. The record shows that the court below, throughout the course of the trial, consistently ruled that the measure of the plaintiff's damages, if any, was the difference between the value of her land with a good and sufficient culvert through the railroad embankment and the value of the same land with the culvert as constructed, and considerable testimony in support of her claim of damages on that theory was given to the jury. From this circumstance we conclude that the ruling upon the motion for a directed verdict, though general in form, was in fact based upon the second ground therein specified; that is, that plaintiff could not recover because of her own contribution to the injury of which she complained. However, as both propositions are insisted upon by the appellee in this court, and as both have been argued by counsel, we shall proceed to their consideration.
1. Beginning with the last proposition above referred to, let us inquire whether there was such a showing of contributory negligence or fault on the plaintiff's part as to justify the court in holding as a matter of law that she was not entitled to recover. The testimony shows that plaintiff is a resident of Illinois, and has never been in actual occupation of the land. The quarter section immediately east of the plaintiff's land is owned by her brother, who is also a resident of Illinois. This brother appears to have had authority from plaintiff to lease her land and look after her interests therein in a general way, and he has occasionally made brief visits to the neighborhood. It appears that in the summer of 1903, shortly before the commencement of this action, plaintiff's brother had one or two tile ditches made on his own land, and to effectuate the drainage extended them down upon or across his sister's land in the direction of the pond of which mention has been made. Some years prior to the construction of the railroad an open ditch had been constructed from the land owned by one Brown immediately to the north of plaintiff's land, draining into or in the direction of the pond. A tile ditch also extends from the land of Brown on the west side of the railroad, discharging its waters into the borrow pit or ditch on the right of way; but these waters, as we understand the situation, do not affect the flooding of the land on the east side of the fill. It is the claim of the defendant company that the facts above recited show without dispute that plaintiff has contributed to the flooding of her own land and is therefore without remedy. We think this position cannot be sustained. In the first place, there is no showing whatever that the extension of the ditches from the land of her brother across the premises was by plaintiff's authority, or with her knowledge or consent. It is true that her brother was her agent, and generally speaking she would properly be held to have notice of and be bound by his dealings with others in reference to the leasing or management of her land; but his agency, so far as the record discloses its character, gave him neither implied nor apparentauthority to construct a ditch upon her land for the benefit of his own. But, even if we assume that the ditches were cut by him with the consent of plaintiff, there is the further insuperable objection to the order of the court that there is no such clear and satisfactory showing of any injurious result therefrom as to authorize the court to withdraw the case from the consideration of the jury. It is not shown, certainly not clearly shown, that any water was brought to the pond which did not naturally drain in that direction. Indeed, the pond seems to be the natural catch-basin of the surface drainage of a considerable area of land to the east and north, and unless it be made to appear that by the acts of the plaintiff, done or permitted since the construction of the railroad, the volume of water to be discharged through the culvert augmented the alleged floods beyond the amount or quantity which otherwise would have drained in that direction, and thereby contributed to the injury for which she seeks to recover from the defendant, her right to damages is in no manner affected by the construction of the ditches. Whether any such results did follow from acts done or permitted by the plaintiff was clearly a question of fact upon which plaintiff was entitled to the verdict of the jury. See Schrope v. Trustees, 111 Iowa, 113, 82 N. W. 466;Collins v. Keokuk, 91 Iowa, 293, 59 N. W. 200. In leaving this branch of the case it is well to suggest that we have discussed the matter of plaintiff's alleged contribution to the injury to her land upon the theory adopted by counsel in argument; but we do not wish to be understood as conceding that the doctrine of contributory negligence has any proper application to actions like the one now before us. See Randolf v. Bloomfield, 77 Iowa, 50, 41 N. W. 562, 14 Am. St. Rep. 268;Correll v. Cedar Rapids, 110 Iowa, 336, 81 N. W. 724.
2. The nature and extent of the legal rights of adjacent landowners in respect to surface waters and drainage, and the measure of damages to be assessed for a violation of those rights, have been the subject of much and varied litigation from an early day in the world's civilization. Increase in land values and increased necessity to make the soil yield the largest possible return to its owner contribute to make the subject one of continually growing importance, but unfortunately for the best interests of society there is perhaps no question of law not settled by statutory enactment upon which there exists a greater confusion of authorities. But in the case now before us no question is raised as to the obligation of the defendant company to provide a suitable and sufficient opening through its embankment for the escape of the water from plaintiff's premises at the place of its natural outlet or discharge, the contention on behalf of the company being that plaintiff offered no proof of injury to her land by reason of the insufficiency of the culvert; and, if this point be overruled, it is further contended that there is an entire failure of evidence as to the damages, if any, resulting to the plaintiff. This state of the record renders it unnecessary for us to go into any examination of the authorities as to plaintiff's right to demand an exit for the surface drainage of her land across the defendant's right of way; but, taking the right for granted, we are to inquire whether there is any testimony tending to show a violation thereof on part of the defendant, and if a violation, whether there is any showing of damage which should have been submitted to the jury. If the witnesses testifying in the case can be believed, there can be little if any, doubt that the 24-inch tile culvert provided by the defendant was wholly insufficient to afford reasonably prompt passage for the water seeking outlet there in times of heavy or long-continued rainfall. The admitted facts as to the topography and formation of the land in that vicinity, a large area of which...
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