Healey v. Citizens Gas & Electric Co.

• Decision Date: 11 December 1924
• Docket Number: 36069
• Citation: 201 N.W. 118,199 Iowa 82
• Parties: DENNIS HEALEY et al., Appellants, v. CITIZENS GAS & ELECTRIC COMPANY, Appellee
• Court: Iowa Supreme Court

201 N.W. 118

199 Iowa 82

DENNIS HEALEY et al., Appellants, v. CITIZENS GAS & ELECTRIC COMPANY, Appellee

No. 36069

Supreme Court of Iowa, Des Moines

December 11, 1924

Appeal from Floyd District Court.--M. F. EDWARDS, Judge.

ACTION at law, to recover damages for injury to real estate of the plaintiffs, alleged to have been caused by overflow and percolation of water, claimed to have been the result of impounding water by a dam constructed by defendant. Plaintiffs alleged injury to their lands, caused by the erection of the dam. Defendant denied, in its pleadings, such injury; but there was a stipulation as to the facts, or rather, as we understand it, an agreed abstract, which will be referred to in the opinion. Trial to a jury. The court, by its instructions, limited the jury to damages resulting only from overflow, and instructed that no recovery could be had for percolation. The jury, on the issues submitted, found for the defendant. Plaintiffs appeal.

Reversed.

J. C Campbell, for appellants.

Edwards Longley, Ransier & Harris, for appellee.

PRESTON J. ARTHUR, C. J., and EVANS, STEVENS, FAVILLE, and VERMILION, JJ., concur.

OPINION

PRESTON, J.

Plaintiffs allege that they are the absolute owners in common of certain real estate described, which lies adjacent to and on the east side of Cedar River; that defendant is engaged in the business of manufacturing and transmitting electricity, and, during the time referred to, was the owner of a dam across the river and other properties and water rights situated on and along said river; that, prior to 1917, an old dam had been maintained, several years; that, during 1917, and prior thereto, defendant constructed a new dam, which was completed April 1st of said year; that, after the completion of the dam, it caused the water in the river above the dam to rise and remain permanently at a height several feet above the old dam; that, by so doing, the water overflowed and permanently permeated and saturated the premises of plaintiffs, and rendered same unfit for agricultural uses of any kind, and destroyed its market value, to plaintiffs' damage in the sum of $ 1,625.

The answer admits that plaintiffs' land lies adjacent to the river, and its ownership of the dam as alleged; denies all allegations not admitted.

Plaintiffs' land does not reach to, or touch, the river. The record does not show the distance from the river, but it is stated in oral argument that it is close,--about ten rods. The character and height of the intervening land do not appear; but the inference is that it was somewhat higher than plaintiffs' land; otherwise, plaintiffs' land would have overflowed. The evidence tends to show that there was some slight overflow, but a recovery for this was authorized by the instructions, had the jury found as a fact that there was overflow. There was some conflict in the testimony, as to whether plaintiffs' lands had been overflowed. This is conceded. The levels are not given; but any difficulties which plaintiffs would otherwise have had in proving that the percolation and injury to their lands were caused by the added height of the water, and elements of uncertainty as to whether the wet condition of plaintiffs' land was caused, in whole or in part, by percolation, as a result of the damming of the river, or from natural sources, as rainfall, natural drainage, porous soil, and the like, are obviated by a concession in reference thereto. There might be some difficulty in a jury's determining, or separating, the damage caused by the defendant and that due to other causes; but, even so, it was a question for the jury as to such amount. The jury was so instructed. Vogt v. City of Grinnell, 133 Iowa 363, 366, 110 N.W. 603; Norfolk & W. R. Co. v. Amicon Fruit Co., 14 A.L.R. 547, 551. It does not appear, nor is it claimed, that the seepage or percolation was through any embankment surrounding an artificial reservoir at which water was maintained at a higher level than the natural surface of plaintiffs' land. As said, the inference is that the intervening land was higher than plaintiffs'. The defendant did maintain a reservoir or pond. It does not appear that there were any visible or known openings, passages, or courses, through which water was discharged upon plaintiffs' land. Neither does it appear that there were some unknown subterranean channels. It is not claimed by defendant that it had acquired any grant or rights from plaintiffs or their grantors, or that plaintiffs were parties to any condemnation proceedings; on the contrary, the claim is that it had, by grant or otherwise, secured an easement of flowage over all lands except plaintiffs'.

We are not called upon in this case to determine whether, in every case where there is percolation from one tract of land to another, without any artificial raising or storage of water, there is liability therefor. The question is clear-cut, and narrowed to the one proposition whether, under the record in this case and the conceded facts, the question should have gone to the jury as to plaintiffs' alleged injury by percolation.

The agreed statement of facts is this:

"Plaintiffs are the owners of the land; defendant is a corporation owning and operating a dam on the Cedar River, at Nashua, Iowa. There had been an old dam at Nashua for a number of years, but that a new dam was constructed by defendant some time before this suit was instituted, and that the level of the water was raised at the point of the dam seven and one-half feet. Defendant had, by grant or otherwise, secured an easement of flowage of all lands, except the parcel owned by plaintiffs in this case, on which the dam caused water to be impounded, and that license had been duly granted to defendant to construct said dam, as provided in Chapter 1, Title IX, of the Code, and as otherwise provided and required by law; that the evidence showed that very little of the water overflowed on the land of plaintiffs on account of the construction of the new dam, but that the volume of water was increased on the property of plaintiffs by reason of percolation and subterranean flowage from the Cedar River, such percolation being also increased by reason of the raising of the dam, and that the said water so gathered on the property of the plaintiffs by reason of percolation covered a greater area than the normal supply of water present on said premises before the construction of said new dam."

Instructions 3, 4, and 6 are complained of. No. 6 is a cautionary instruction, and within the discretion of the court, to the effect that the jury should decide the case on the evidence, and apply the law as given in the instructions, without sympathy for plaintiff or prejudice against the defendant. We think this objection is without substantial merit, and it will be given no further consideration.

Instruction 3 is, in part, as follows:

"Defendant has no right to build an obstruction which causes the water in the river to back up and stand on, or flow over, plaintiffs' land, unless said right has been obtained by grant, express or implied, from plaintiffs or their grantors. If you find from the evidence, and in the absence of any grant, that defendant's dam has caused the water in the river to back up and to stand on or to flow over the land described in plaintiffs' petition, in a greater amount or to a greater degree than occurred before said dam was built, then the same constitutes an unlawful act on the part of the defendant, and the defendant will be liable for the damages, if any, due to said act. * * * The damages to which plaintiffs are entitled, if any, is the amount of damages which will compensate them for the depreciation in the market value, if any, of plaintiffs' land, due to the act of the defendant in causing water to stand on or to flow upon plaintiffs' said land to a greater extent or to a greater degree than occurred before said dam was built. And you must distinguish between damages due to percolation and seepage, for which defendant is not liable * * *"

On the question of damages the court gave Instruction 4:

"The burden is upon plaintiffs to establish by the preponderance of evidence, etc., each of the following propositions: (a) That plaintiffs' land has been damaged, as claimed in the petition. As to the method of determining the fact as to whether or not any damage at all has been done, you will be instructed later. (b) That the damage so found, if any, was due to the unlawful act or omission of the defendant. As to what constitutes an unlawful act or omission for which defendant is liable, you will be later instructed.

"(2) On the first proposition,--that is, the determination of the amount of damage, if any, the measure of damages to the land is the difference, if any, in market value, etc. * * * If, by the application of this rule, you find that there has been a depreciation in market value, due to the unlawful acts or omissions of defendant, then such depreciation is the measure. However, you must bear in mind that the plaintiff is only entitled, as damages, to that depreciation, if any which is the legal consequence of an unlawful act or omission on the part of defendant toward this plaintiff.

"(3) As to what constitutes an unlawful act, etc.: There is evidence to the effect that some damage has been done to plaintiffs' land by percolation or seepage of water into said land from other lands which defendant had the right to flood, or by percolation and seepage from defendant's mill pond. You are instructed that the flooding of land by defendant, over which the right of flooding has been acquired by grant, is a lawful exercise of defendant's rights, and is not an unlawful act.

"(4) The defendant is liable for the injury to the land in...