Innis v. Cedar Rapids, I. F. & N. W. Ry. Co.

• Decision Date: 18 December 1888
• Citation: 76 Iowa 165,40 N.W. 701
• Parties: INNIS v. CEDAR RAPIDS, I. F. & N. W. RY. CO. ET AL.
• Court: Iowa Supreme Court

76 Iowa 165

40 N.W. 701

INNIS

v.CEDAR RAPIDS, I. F. & N. W. RY. CO. ET AL.

Supreme Court of Iowa.

December 18, 1888.

Appeal from district court, Palo Alto county; LOT THOMAS, Judge.

Action in equity by W H. Innis against the Cedar Rapids, Iowa Falls & Northwestern Railway Company to abate an alleged nuisance. The district court, on the hearing, dismissed the petition. Plaintiff appealed.B. E. Kelly, for appellant.

Soper & Allen and S. K. Tracy, for appellees.

REED, J.

The act complained of is the erection and maintenance of a railroad bridge over a body of water known as Medium lake. Plaintiff alleged that said lake is a public, navigable water, and that the bridge maintained by defendants is an obstruction to the free use thereof for purposes of navigation. On the hearing in this court a number of questions were elaborately argued by counsel, but we have found it necessary to consider the single question whether, conceding the navigable character of the lake, and that the bridge is an obstruction, plaintiff has such interest as will enable him to maintain an action in his own right for the abatement of the nuisance. Plaintiff is a resident of the town of Emmetsburg, which is situated at the south end of the lake, and is the owner of a number of small boats, which he keeps for hire, and which he rents to others for use on the lake. They have been used for purposes of pleasure, and by persons engaged in fishing, and are not adapted to any other use. The lake is five or six miles long, and its width varies from one-fourth to three-fourths of a mile. The bridge is situated about one mile from the south end, and spans the whole width of the lake at that point. There is no draw nor opening in it, and the bottom timbers are so near the water that boats cannot safely or conveniently pass under it. The boat-house and landing are situated at the south end next to the town, and that is the only point of convenient access to the water from the town, and the part of the lake north of the bridge is better adapted to boating than that lying south of it. Plaintiff's complaint is that, owing to the obstruction caused by the bridge, the business of boating on the lake has greatly fallen off, and as a consequence his business has been impaired, and his profits therefrom diminished. He also alleged, and the evidence tended to prove, that he and others contemplated placing a small steamer on the lake, but were deterred from engaging in the enterprise by the existence of the obstruction. The evidence also shows that he did not engage in his present business until four or five years after the bridge was constructed. His counsel contended that the bridge is such an obstruction to the free use of his property “as entitles him to maintain an action in his own right for its abatement. He relied on section 3331 of the Code, which is as follows: “Whatever is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property so as essentially to interfere with the comfortable enjoyment of life or property is a nuisance, and a civil action * * * may be brought thereon by any person injured thereby. * * *” It is very clear that under this provision, a person who sustains a special injury from a public nuisance,...