Hubbell v. City of Des Moines

• Decision Date: 29 June 1914
• Docket Number: No. 29453.,29453.
• Parties: HUBBELL ET AL. v. CITY OF DES MOINES ET AL.
• Court: Iowa Supreme Court

166 Iowa 581

147 N.W. 908

HUBBELL ET AL.

v.CITY OF DES MOINES ET AL.

No. 29453.

Supreme Court of Iowa.

June 29, 1914.

Appeal from District Court, Polk County; James P. Hewitt, Judge.

Proceedings for the condemnation of certain real estate belonging to plaintiffs, in Des Moines, Iowa, for city purposes. Plaintiffs appealed from an award made by a sheriff's jury to the district court, and upon a trial of that appeal to a jury they were awarded the sum of $31,000, which was $1,500 less than the award by the sheriff's jury. They appeal. Affirmed.Parker, Parrish & Miller and John McLennan, all of Des Moines, for appellants.

R. O. Brennan, H. W. Byers, and Eskil C. Carlson, all of Des Moines, for appellees.

DEEMER, J.

The issues arising in the trial court were: First, the size of the lot, it being bounded on the east by the Des Moines river, which, at the time of the original survey, had been declared a navigable stream; and, second, the amount of compensation which should be awarded for the taking of the lot. The lot was sought to be condemned for park purposes, and the entire tract was so taken, so that any question of consequential damages was entirely eliminated. The latter of the two questions was simply: What was the fair market value of the property taken? Upon the first proposition the trial court instructed the jury as follows:

“The Des Moines river is a meandered stream, but the meander line of said stream is not to be taken as the east boundary line of the lot in question, as the same existed on said 16th day of February, 1912, and under the evidence in this case it does not in any sense limit or define the east boundary line of said premises at said time. Said lot being located upon a meandered stream, the owner of said lot, commonly called a riparian owner, is the owner of the land to a line called the ordinary high-water mark, which is the eastern boundary line of said premises, and the state is the owner of the stream, and all parts thereof extending between the ordinary high-water marks on each side thereof.

At the time the said lot 2, Coliseum place, being the premises involved in this controversy, was appropriated by the defendant under said condemnation proceedings, being the 16th day of February, 1912, the plaintiffs in this case were the owners of said lot, and the said line known as the ordinary high-water mark at the west line of the Des Moines river was the east boundary line of plaintiffs' said premises at said time. In fixing the reasonable market value of said premises on said 16th day of February, 1912, you should determine said value upon the basis of the area of said lot as it existed on said date, by determining the location at said time of said ordinary high-water mark, which was the eastern boundary line of plaintiffs' lot at said time. The ordinary high-water mark of a stream is not always a fixed or permanent line, but, under certain conditions, may undergo changes caused by the action of the water, and the owner of the land abutting on such stream holds his title subject to the possibility of the amount of his land being increased or diminished by such action of the water. The line which fixes or determines the ordinary high-water mark is not the line reached by unusual floods, nor is it necessarily the point to which the water rises at any particular time, but it is the line which the river or stream impresses upon the soil as the limit of its dominion, and such line is to be determined from the record which the river makes for itself. It is that line along the bank or shore of the river or stream where such river or stream leaves a permanent impression of its domain; the limit of the line where vegetation is interfered with by the action of such river or stream. The line which fixes ordinary high-water mark is co-ordinate with the limits of the bed of the river or stream, and that only is to be considered the bed which the water occupies sufficiently long and continuously to wrest it from vegetation, and destroy its value for agricultural purposes. Soil which is submerged or affected by the water in the bed of the river or stream so long or so frequently in ordinary seasons that vegetation will not grow upon it may be regarded as part of the bed of the river or stream which overflows it, and such soil does not belong to the adjacent property owner.

In this connection you are further instructed that any kind of vegetation, whether trees or smaller growths, which grows and flourishes best in the immediate vicinity of running streams that are subject to overflow, and which, by reason of a peculiar nature that may be adapted to wet places, shoots up in places as the water recedes, and which can withstand the effect of such overflow without injury for a longer period of time than other kinds of vegetation, should not necessarily be classed as vegetation to which the law refers as marking the limits of the ordinary high-water mark in cases of this character, unless the soil on which such vegetation grows is adapted to, and can be used for, the growth of ordinary vegetation or for agricultural purposes.

You are to consider and determine the character of the vegetation, if any, appearing from the evidence to have a bearing upon the question of the location of the ordinary high-water mark involved in this case at the time in question. The ordinary high-water mark which was the east boundary line of said lot on the 16th day of February, 1912, is the true water mark as the same had theretofore been established or impressed upon the soil by natural causes; that is, by the action of the waters of the Des Moines river as they affected the land or soil along the shore or bank of said river in its natural condition, without human interference, or changes wrought by artificial means.

If you should find from the evidence that the shore or bank of said river at any time prior to said 16th day of February, 1912, had been permanently affected or changed by human interference or by artificial means, so as to permanently obliterate or wipe out the ordinary high-water mark of said river theretofore existing, then and in such case such human interference, and changes caused by artificial means, would not have the effect to change said ordinary high-water mark as the same had been brought about and theretofore existed by reason of such natural causes and before such human interference, and in such cases, if you should find from the evidence that prior to the said 16th day of February, 1912, permanent changes had been made in the shore or bank of said river by reason of human interference and by artificial means which had the effect to permanently obliterate or wipe out the ordinary high-water mark of said river theretofore existing, you should find and locate the east boundary line of said lot 2, Coliseum place, on said 16th day of February, 1912, at the line of the ordinary high-water mark as the same last existed before said permanent changes which were so brought about by such human interference and artificial means.

There has been evidence introduced on the trial tending to show that a waterway formerly known as Bird's run extended through the lot in question and emptied into the Des Moines river at or near the east line of said lot. You are instructed, as a matter of law, that said Bird's run was not a meandered stream, and hence the plaintiffs, or the former owners of said lot, were the owners of all of the bed of said stream which you find to have been upon or over said lot 2, Coliseum place, and the mere fact, if it be a fact, that the Des Moines river in former times of freshets or high water, or at times when the river may have reached a point higher than the ordinary high-water mark, as elsewhere in these instructions defined, overflowed a part of said lot along or adjacent to Bird's run, this fact would not, in any manner, affect the title to any part of plaintiffs' lot which was west of the ordinary high-water mark of the Des Moines river, as you may find the same to have been located at said time.

The title to and ownership of the Des Moines river, which includes the bed of the river with all parts of the shore or bank which lies between the ordinary high-water mark on each side of said river, is in the state of Iowa, but the state of Iowa, by legislative enactment, has granted to the city of Des Moines jurisdiction and control, for park and other purposes, of a certain portion of said river within the city of Des Moines, including that portion which lies east of the ordinary high-water mark of said river, which is the east boundary line of said lot 2, Coliseum place.

You are instructed that at the time of said condemnation proceedings on said 16th day of February, 1912, the plaintiffs were the owners of said lot 2, their ownership extending only to the line of said ordinary high-water mark on or along the east side of said lot, and that the city of Des Moines had jurisdiction and control of all parts of the space or area lying east of the said ordinary high-water mark and west of the ordinary high-water mark at the east shore of said river. In fixing a value upon plaintiffs' said property at the time in question, you will be limited to the land or premises which were west of the ordinary high-water mark at the west side of the Des Moines river as it existed at said time, regardless of the character of the use or occupancy of the space or area lying east of said ordinary high-water mark.”

None of these instructions are complained of, and, as they are as favorable to plaintiffs as the law will justify, they must be accepted as correct. That they were not prejudicial to the plaintiffs see McManus v. Carmichael, 3 Iowa, 1;Haight v. Keokuk, 4 Iowa, 199;Musser v. Hershey, 42 Iowa, 356;Houghton v. Railroad, 47 Iowa, 370;Welch v. Browning, 115 Iowa, 690, 87 N. W. 430;Berry v. Hoogendoorn, 133 Iowa, 437, 108 N. W. 923;Merrill v. Cerro Gordo County, 146 Iowa, 325, 330, 125 N....