Iowa Power Co. v. Hoover

• Decision Date: 22 June 1914
• Docket Number: 29151
• Parties: IOWA POWER COMPANY, Plaintiff and Appellant, v. ANDREW HOOVER, ET AL., Defendants and Appellees
• Court: Iowa Supreme Court

147 N.W. 858

166 Iowa 415

IOWA POWER COMPANY, Plaintiff and Appellant, v. ANDREW HOOVER, ET AL., Defendants and Appellees

No. 29151

Supreme Court of Iowa, Des Moines

June 22, 1914

Appeal from Henry District Court.--HON. W. S. WITHROW, Judge.

THERE are two appeals, the first from an interlocutory decree, and the second from a final decree which ordered the sheriff to reduce the height of a dam and abate the nuisance caused by its construction and maintenance above the height authorized. The cause was tried as in equity, and there was a decree for defendants upon their equitable answers. The facts will more fully appear in the opinion. The two appeals were submitted together in this court. The plaintiff is the appellant.--Modified and Affirmed.

Modified and Affirmed.

Blake & Wilson, and Utt Bros., for appellant.

J. C McCoid, F. S. Finley, R. S. Galer and Hughes & McCoid, for appellees.

OPINION

PRESTON, J.

There is a large record, and it is an unusual record in some respects. Appellant calls defendants' pleadings omnibus or blunderbus pleadings, while appellees say of plaintiff's that plaintiff seemed to be in doubt as to what it really wanted, and that it has shifted its position more than once during the progress of the proceedings, and that it has abandoned the position it first took. This last proposition is conceded by the plaintiff.

Many questions were raised and determined in the district court which are not before us, but they have all been elaborately argued. The trial court found against defendants as to some of these points, and such have been argued, though defendants have not appealed. Defendants were granted substantially all the relief asked, although there was some claim that plaintiff had no right to maintain the dam at all. Other points have been argued, which are not now in the case, and as to some of these it is so conceded. We account for these matters because of zeal of counsel, and we do not refer to them so much by way of criticism as to show the real situation. Nevertheless we have found the record decidedly confusing. It is necessary to a proper understanding of the situation that the pleadings and record be set out somewhat in detail.

On March 10, 1911, plaintiff filed its petition, stating in substance that it owned a tract of four acres on one side of Skunk river and two acres upon the other side, which tracts were particularly described; that such land was purchased by it, also the milldam between and connecting said two tracts the foundation to the mills, the dam abutments, and all dam rights, rights of flowage, and all rights appurtenant thereto; that Skunk river is a nonnavigable stream; that in the year 1839 Robert Wilson was the owner of the above-described pieces of land, and that in that year the Legislature of the then territory of Iowa by special act, granted to him, to his heirs or assigns, permission to build and maintain a dam on said river between said parcels of land; that immediately after said Wilson received said grant he erected a dam seven feet ten inches high across the river at said point, and he, his heirs and assigns, maintained said dam until about the year 1904, utilizing the same for the generation of power and for the operation of machinery; that during all of said time the dam caused the water to back up said river, and none of the owners of property along the river ever denied the right to so back the water up said stream; that through successive conveyances of the above-described real estate it has acquired all the rights originally granted to the said Wilson by said act, and that it has acquired all the rights of said Robert Wilson, his heirs and assigns, acquired by reason of having backed the water up said river; that about the year 1904 the dam was partially washed away, and that plaintiff now desires to rebuild or restore said dam to its original height, to wit, seven feet ten inches, for the purpose of establishing and operating a hydro-electric plant to produce electricity and supply the general public; that the building of said dam to said height will not overflow any of the lands bordering on said river above the dam, and the water so backed up will not leave the banks of the river; that neither the dwelling house, outhouse, garden, nor orchard of any person owning land along the banks of the river will be overflowed or injuriously affected; that Deborah Beal, D. C. Curl, James Shepherd, Ethel Laird, C. E. Dusenberry, Andrew Hoover, and J. L. Virden own lands along the banks of said river above the dam; that all said parties have executed written instruments, where-in each of them has waived condemnation proceedings and statutory notices, and consents that this court may, in any proceeding brought by N. E. Utt, his heirs and assigns, grant a license to rebuild or restore said dam and maintain it to its former height of seven feet ten inches, except Ethel Laird has executed a similar instrument wherein she consents that this court may grant such a license in any proceeding brought by plaintiff; that no other person or persons own land along or near the banks of said Skunk river that will be overflowed or injuriously affected by reason of building said dam to said height; that such waivers and consents have been assigned to plaintiff; that by reason of the facts alleged as aforesaid plaintiff has the right to rebuild or restore said dam to the height of seven feet ten inches, and to cause the water to back up said stream, and, in addition to the rights it now possesses, it asks this court to grant unto it a license to restore and rebuild said dam across said river between the lands so owned by it to the height of seven feet ten inches, and for such other order or relief as the court may deem just and proper to grant.

On March 13, 1911, Emiline A. Wright filed objections to the petition, and states that she enters her appearance as a party defendant, and files objections to the granting of a license to plaintiff, which objections are substantially as follows: That she is the owner of lands lying upon the Skunk river immediately north of the site of the proposed dam; that the lands she owns would be affected by said dam causing the water to back up and overflow same if said permit is granted; that the plaintiff has requested this defendant to file a waiver and a written consent to construct this dam, but this she has refused to do; that no jury has been called out to assess her damages, as provided by law; that this court has no jurisdiction of this cause until the preliminary steps have been followed, conferring jurisdiction upon this court; that Skunk river is a navigable river, and the plaintiff has no license, permit, or authority to construct a dam across same; that the old dam that existed at the site where plaintiff is about to construct a dam has long since been abandoned, and was abandoned for more than one year prior to the plaintiff's attempt to rebuild same; that plaintiff is raising said dam higher than it has been for many years, without any right or authority at law; that the plaintiff is now at work constructing said dam, and, if permitted to continue, it will greatly interfere with the land of this defendant; that there are many others along said river whose land will be affected by the building of said dam, and whose consent has not been procured, and there have been no steps taken to appraise their damages, as provided by statute. The defendant asks that no license be granted until her damages have been appraised, as in the manner provided by law. Defendant further asks that a writ of injunction issue against the plaintiff, enjoining it from constructing said dam, and that a temporary writ of injunction issue until the final hearing of this action, enjoining them from constructing said dam and interfering with the natural flow of the waters of said river, and for such other and further relief as to the court seems equitable and just.

On April 20, 1911, one Beck entered his voluntary appearance in said action as defendant, and filed an answer to the petition of plaintiff, alleging some of the matters contained in the objections filed by Emiline A. Wright, and stating further that he denies all allegations of the petition not admitted denies that the parties named as defendants in plaintiff's petition are the only parties interested, that Skunk river at the point in question is a navigable stream, that plaintiff is attempting to construct, and is constructing, a dam across said stream, and, unless restrained by this court, will construct the same to the height of seven feet ten inches; that for many years prior to 1904 a dam was maintained at said place, but this defendant denies that said dam was ever constructed or maintained to the height of seven feet ten inches, as plaintiff proposes to construct it; that said dam was taken out during the year 1904, and was abandoned at said time, and has never been reconstructed or repaired, and plaintiff has no right, license, or privilege to construct a dam at said place by virtue of any ancient right; that plaintiff has not obtained any license from the state of Iowa to construct a dam, nor has it had any condemnation proceeding, as provided by law, for the privilege of constructing said dam; that a large amount of the land owned by this defendant, which lies a short distance above the proposed dam, is low-lying land, and will be overflowed and affected, and the construction of said dam as now proposed will be an irreparable injury to about thirty acres of this defendant's land. Defendant asks that plaintiff's application for license to construct a dam be denied, and that, by way of affirmative relief, the court grant a permanent injunction against the plaintiff, enjoining it from...