Hoard v. City of Des Moines
| Decision Date | 08 December 1883 |
| Citation | 17 N.W. 527,62 Iowa 326 |
| Parties | HOARD v. THE CITY OF DES MOINES |
| Court | Iowa Supreme Court |
Appeal from Polk Circuit Court.
THE plaintiff, and other persons, are the owners of certain lots situated on and near the east bank of the Des Moines river in the city of Des Moines. These lots have been subject to overflow in times of flood from the water of the river, and from the Coon river, which empties into the Des Moines river from the west. In 1880 the city authorities constructed an embankment or levee along the first street east of the plaintiff's lots, and nearly parallel with the river This embankment was raised above high water mark, so as to prevent overflow from the rivers upon that part of the city lying east of the levee. The plaintiff claims damages; and he alleges that, before the levee was constructed, the water in times of overflow passed over his lots to the east, and was discharged across that part of the city, and into the river some distance below the city. He claims that the levee causes the water to stand upon the lots between it and the river in times of floods, and that the lots are thus injured and damaged.
Some ten actions were brought in the names of different owners of lots. All of these actions were consolidated, and a jury was impaneled, and the plaintiff introduced his evidence. The court, on the motion of the defendant, instructed the jury to return a verdict against the plaintiff, upon the ground that there was no evidence tending to prove a cause of action. Paintiff appeals.
AFFIRMED.
Bryan & Bryan, for appellant.
Williamson & Kavanaugh, for appellee.
It is not claimed that the city obstructed a natural stream by the erection of the levee. The most that can be claimed from the evidence is that, after the levee was constructed, the water in time of overflow was deeper on plaintiff's lots because by the levee it was not permitted to overflow that part of the city east of the levee, and pass off in that direction. The evidence does not show that the levee could have been constructed upon the bank of the river, or between plaintiff's lots and the river. On the contrary, it is shown beyond question that the river bank is largely composed of sand, which for years has been cut away by the action of the water, so that, at the time the levee was built, some of the lots on the river bank had been partly washed away. At the time the...
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