Hunt v. Iowa Cent. R. Co.

• Decision Date: 27 May 1892
• Citation: 86 Iowa 15,52 N.W. 668
• Parties: HUNT v. IOWA CENT. R. CO.
• Court: Iowa Supreme Court

86 Iowa 15

52 N.W. 668

HUNT

v.IOWA CENT. R. CO.

Supreme Court of Iowa.

May 27, 1892.

Appeal from district court, Louisa county; J. K. JOHNSON, Judge.

Action for damages caused by surface water discharged upon plaintiff's lands. Verdict and judgment for plaintiff. Defendant appeals.Anthony C. Daly, Theo. F. Bradford and D. N. Sprague, for appellant.

Newman & Blake, for appellee.

KINNE, J.

1. Plaintiff is the owner of 40 acres of land in Louisa county. She claims that defendant, owning and operating its line of railway through said county and across her land, has on its right of way a ditch on the north side of its roadbed, commencing a mile south easterly from plaintiff's land, and by means of which surface water from land lying east of plaintiff's is conveyed upon her land, and accumulates and stands upon the same in large quantities, submergingthe same; that defendant has provided no means of escape for the water so accumulating; that formerly said surface water did not flow from lands east of plaintiff's over and upon her land, but since the same has been diverted by said ditch, and for two years past, by said means it has been gathered and conducted upon her lands, destroying her crops, and rendering her land untillable, and greatly depreciating its value; that said damage and injury is the result of such ditch; that the water conducted on said land by said ditch submerged about three acres per year, on an average, since the building of the road, and the water has been diverted as aforesaid most of the years since the road was built. The last two years the land overflowed three times. Defendant denies generally, and pleads that the road was constructed in 1881 by the Chicago, Burlington & Pacific Railroad Company, and the ditch complained of then built by digging and taking earth from the sides and throwing it up in the center for the embankment upon which the ties and rails were laid, and that all damage arising out of its construction were paid for when the right of way was acquired. That defendant has been in possession and ownership of said railway from June 1, 1889, having purchased it in the same condition it was in (at the time of the commencement of this action) at a foreclosure sale ordered by the circuit court of the United States for the southern district of Iowa in a case then pending therein, wherein the Central Trust Company of New York was plaintiff and the Central Iowa Railway Company defendant; the latter company being the grantee of the Chicago, Burlington & Pacific Railroad Company, and no notice was given defendant at any time to reform or abate the said ditch. That at the time of building said railway and the making of said ditch plaintiff did not own said premises. That plaintiff could, at a moderate expense, have relieved her land of the accumulation of water, and prevented the injury in whole or in part. That the alleged cause of action set out in plaintiff's petition did not accrue at any time within five years next before she began her action.

2. It appears in this case that judgment was entered against the defendant at once on the coming in of the verdict. That afterwards, and on November 12, 1890, it filed its motion for a new trial. This motion was taken under advisement by the court. February 2, 1891, it perfected its appeal to the supreme court. April 3, 1891, the motion for a new trial was submitted, and the court refused to pass upon the same, holding it had no jurisdiction, the cause having been appealed. April 8, 1891, defendant undertook to appeal from the refusal of the court to pass upon the motion. Appellee now moves to dismiss the appeal, claiming that, as the case had not been finally disposed of by the district court at the time the appeal was taken, and as the defendant filed a motion for a new trial in that court, he is precluded from appealing. Our statute provides that “the supreme court may review and reverse on appeal any judgment or order of the district court, although no motion for a new trial was made in such court.” Code, § 3169; Drefahl v. Tuttle, 42 Iowa, 177;Brown v. Rose, 55 Iowa, 734, 7 N. W. Rep. 133;Presnall v. Herbert, 34 Iowa, 539;Beems v. Railway Co., 58 Iowa, 150, 12 N. W. Rep. 222. From these and other cases that might be cited it is clear that all errors at law arising upon the trial, and to which proper and timely exceptions are taken, may be reviewed on appeal by this court without having been embodied in a motion for a new trial. It is also certain that the pendency of a motion for a new trial at the time an appeal is taken will not in any manner invalidate the appeal, or prevent this court giving the same consideration to errors properly raised by it, and on the trial, as it might do, had no motion been filed. Brown v. Rose, 55 Iowa, 734, 7 N. W. Rep. 133. The motion to dismiss will be overruled.

3. Appellant insists that all the damages sued for in this action are such as, in the contemplation of the law, would be included in the amount paid for the right of way. The plat below will show the course of the railroad, the situation of the lands with reference thereto, the course of the surface water before the railroad was built, and the point where the water is discharged upon plaintiff's land.

IMAGE

Prior to the erection of the railroad embankment there was a natural depression in the ground, which formed an outlet for surface water on the west 80 of Campbell's land. A culvert was placed at that point. A ditch also existed between the Hunt and Wright lands in the highway separating them. This highway ditch caught most of the surface water east of the same, and which fell on the west part of the Wright land, and the Campbell outlet furnished a place of escape for all surface water falling upon Curran's land, Campbell's land, and the west part of Wright's, as also adjoining lands. It would appear, then, from the testimony that prior to the building of the railroad no surface water which fell east of the Hunt land afterwards passed on or over it. At the point where the Campbell outlet was the railroad company put in a tile culvert under its track. The ditch on the north side of the railroad embankment washed out deeper than the tile, and in time the company lowered this tile culvert, but, the opening being too small to permit all the water to pass through, part of it ran along the ditch, and again washed below the tile culvert, so that this culvert was useless as a waterway. The highway ditch already spoken of, and which, before the railroad was built, carried off the water from the Wright land, since the building of the road has ceased to do so, as the railroad ditch where it crosses it is lower than the highway ditch, and the former carries all water which formerly emptied into said highway ditch, as well as that gathered in the highway ditch. So all the water is carried along and emptied upon the Hunt land. It passes through a culvert on the Hunt land about 30 rods west of the east line. Some 300 feet west of this culvert the water in the ditches runs west until it empties into a natural outlet. But from a point 300 feet west of the Hunt culvert the water runs east, and passes through it. It appears that, after the notice was served upon the defendant, it, at an expense of eight dollars, built a dam across its ditch on the north side of its track, and a little to the west of the Campbell culvert, which now forces all the water...