Hume v. City of Des Moines
| Decision Date | 05 April 1910 |
| Parties | ANGIE H. HUME, Appellant, v. CITY OF DES MOINES, Appellee |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HON. JESSE A. MILLER, Judge.
ACTION at law to recover damages due to the backing up of surface water in such a manner as to injure plaintiff's premises. The injuries are alleged to have been due to the carelessness and negligence of the city in casting cinders and refuse of different kinds into a culvert and drain in such a manner as to impede the flow of surface water and dam it up so that it flowed back upon plaintiff's premises and produced the injuries of which she complains. At the conclusion of plaintiff's evidence, the trial court directed a verdict for defendant, and plaintiff appeals.
Reversed.
Hume & Hamilton, for appellant.
R. O Brennan and J. M. Parsons, for appellee.
Plaintiff is the owner of what is known as lot seven of the official plat of lots one, two, three, and four in block forty-two of J. Lyons' addition to Ft. Des Moines, now within the corporate limits of the city of Des Moines. This lot is thirty-three feet in width east and west and sixty-eight feet in depth north and south. It faces north on West Walnut street, and between it and West Fifteenth street are six lots of equal width and an alley. On the south is an elevated embankment and the right of way of the Des Moines Union Railway Company. Toward the west and the width of another lot of equal dimensions is West Sixteenth street. All these streets are regular public highways of the city. Plaintiff's premises slope from the northeast to the southwest; the southwest corner of the lot being from ten to fifteen feet lower than the northeast corner. Prior to the injuries complained of, surface water falling upon said lots and upon parts of West Walnut and West Fifteenth streets flowed naturally and uninterruptedly across plaintiff's lots and found exit at the southwest corner thereof, and, by means of a ditch along the railway embankment running westward, the surface water coming from the lot ran westward until it came to a drain tile or pipe passing through the railroad embankment, from whence it ran across the right of way and upon the bottoms south of said right of way into the Raccoon River. Where West Sixteenth street running south met the railway embankment, there was a plank bridge under which the water coming westward along the railway embankment flowed, and just west of this bridge and in Sixteenth street was the opening of the drain tile which passed under and through the railway embankment. This ditch along the railway embankment also extended westward from the opening of the drain tile so that it carried away any excess of water which could not get through the eighteen-inch tile. The surface of plaintiff's lot was something like ten or fifteen feet lower than the top of the pavement at Fifteenth and Walnut streets, and no part of the same had ever been brought to grade. Surface water on Walnut street flowed westward from Fifteenth to Sixteenth street, and when it reached Sixteenth flowed southward to the railway tracks and into the ditch before described. In the year 1872 the defendant city established a grade for West Walnut street from a point ninety-nine feet east of Fifteenth street to a point sixty-six feet west of Fifteenth street; the former point being forty-three feet and the latter twenty-six and forty one hundredths feet above the datum point. The grade at the intersection of West Walnut and Sixteenth streets was not established until the year 1897, when it was fixed at twenty-four feet above the datum line, and in the same year the grade of West Sixteenth street at its intersection with the Des Moines Union Railway tracks was fixed at twenty-three feet above the datum line. Plaintiff's lot is so located that no grade was established either of Walnut street to the north or of West Sixteenth street to the west until the year 1897. The house on plaintiff's premises was erected in the year 1895, as were other houses both east and west thereof.
In the spring or summer of the year 1907, the defendant city undertook to bring the surface of West Walnut to the north of plaintiff's property, and of West Sixteenth to the west thereof, to the established grade, and, pursuant thereto hauled in and dumped dirt, ashes, street sweepings, and other refuse, raising the middle of the street something like four or five feet, but leaving hollows or ditches some ten or twelve feet in width around the block in which plaintiff's premises are located between the fill in the street and the lot lines. In so doing it filled up the space under the bridge crossing the ditch along the railway embankment, and the opening to the tile drain was buried several feet with ashes, cinders, and refuse. This left lot seven, as well as other lots in the same block, surrounded by embankments several feet higher than the surface of the ground, and no method was preserved either temporary or permanent for the escape of surface water. In July and August of the year 1907 there were several heavy rainfalls, and, there being no escape for the water as it accumulated upon the streets and the lots in the block in which plaintiff's property is located, it made a large pond, which covered the surface of plaintiff's lot and of lots adjoining to the depth of two or three feet, causing the injuries of which plaintiff complains. These injuries were shown to be serious and substantial, and no question is now made but that plaintiff, if entitled to anything, has shown a situation which entitles her to something more than nominal damages. The petition charges that "said embankment was negligently and carelessly constructed, in that it hindered, obstructed, and prevented access to plaintiff's property aforesaid and to the alley thereto adjacent; in that it cut off and destroyed the natural drainage and outlet to the surface water aforesaid; in that it dammed up the ditch and filled the drain pipe or tile above described, and created a reservoir or large pond of stagnant water on and about the plaintiff's premises; and in that the defendant made no provision of any kind, either temporary or permanent, for the escape of said water, or for diverting the flow thereof before the same entered plaintiff's property, although the defendant at the time well knew, or, in the exercise of reasonable care, should have known, the topography of the land, the elevation of said lot, the outlet of said natural water course and drainage, and the damage to plaintiff's property that would inevitably result from its failure to provide an escape for said water."
The case presents the old, yet ever new, question of the liability of a city or municipal corporation for damming up or otherwise obstructing the flow of surface water to the injury and damage of abutting property, especially where that property is below the established grade. There is a hopeless conflict in the cases upon this proposition, and our own decisions upon the subject are not as harmonious as we might wish. It has been broadly asserted in many cases that, as surface water is a common enemy, a city may bring its streets to grade by filling or excavating, and thus obstruct or impede the flow of surface water, damming it back, and causing it to collect upon abutting property without liability for damages, particularly where the abutting or adjoining property is below the established grade. In jurisdictions where this doctrine prevails, the common-law rule obtains, which is to the effect that as to surface water pure and simple there is no such thing as dominant and servient estates. See, as sustaining this rule, the following, among other, cases: Corcoran v. City, 96 Cal. 1 (30 P. 798, 31 Am. St. Rep. 171); Henderson v. City, 32 Minn. 319 (20 N.W. 322); Stewart v. City, 79 Mo. 603, 612; Clark v. City, 5 Har. (Del.) 244; Pettigrew v. Village, 25 Wis. 223 (3 Am. Rep. 50); Hoyt v. City, 27 Wis. 656 (9 Am. Rep. 473); Lynch v. Mayor, 76 N.Y. 60 (32 Am. Rep. 271); Bowlsby v. Speer, 31 N.J.L. 351 (86 Am. Dec. 216); Jessup v. Bamford Bros., 66 N.J.L. 641 (51 A. 147, 58 L. R. A. 329, 88 Am. St. Rep. 502); Dickinson v. Worcester, 89 Mass. 19, 7 Allen 19; Chatfield v. Wilson, 28 Vt. 49; Waffle v. N. Y. Cent. R. R., 58 Barb. (N. Y.) 413; Lampe v. City, 124 Cal. 546 (57 P. 461, 1001).
The rule in England, as will be hereafter observed, is somewhat in doubt. See Earl v. De Hart, 1 Beas. 280. In other jurisdictions where the civil law obtains, the rule as to individuals is exactly the opposite, and the lower proprietor is held liable for damming back and obstructing the natural flow of surface water. Nevins v. City, 41 Ill. 502 (89 Am. Dec. 392); Kauffman v. Griesemer, 26 Pa. 407 (67 Am. Dec. 437); Martin v. Riddle, 26 Pa. 415; Gillham v. Madison R. R., 49 Ill. 484 (95 Am. Dec 627); Laumier v. Francis, 23 Mo. 181; City v. Baker, 65 Ill. 518 (16 Am. Rep. 591); Butler v. Peck, 16 Ohio St. 334 (88 Am. Dec. 452); Livingston v. McDonald, 21 Iowa 160; City of Aurora v. Reed, 57 Ill. 29 (11 Am. Rep. 1). But in some of these jurisdictions adopting the rule of the civil law, an exception has been made as to cities and towns. There both the lot owner and the city have been permitted to obstruct or repel surface water without liability for injury. See Bentz v. Armstrong, 8 Watts & Serg. 40 (42 Am. Dec. 265); Livingston v. McDonald, supra; Stewart v. City, 79 Mo. 603, 612; Los Angeles Ass'n v. City, 103 Cal. 461 (37 P. 375, 377). But even where the common-law rule obtains, individuals, railway companies, and cities have been held liable for the obstruction and damming up of surface water. Thus, in Waterman v. Railway Co., 30 Vt. 610 (73 Am. Dec. 326), it is said: "That a railroad...
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