Irvine v. City of Oelwein

• Decision Date: 22 January 1915
• Docket Number: No. 29575.,29575.
• Parties: IRVINE v. CITY OF OELWEIN.
• Court: Iowa Supreme Court

170 Iowa 653

150 N.W. 674

IRVINE

v.CITY OF OELWEIN.

No. 29575.

Supreme Court of Iowa.

Jan. 22, 1915.

Appeal from District Court, Fayette County; A. N. Hobson, Judge.

Action at law to recover damages for an alleged nuisance, due to the construction of a dam which caused water to overflow lands belonging to plaintiff, and for an order for an abatement of the nuisance. The case was tried to a jury upon issues joined by defendant's answer, resulting in a verdict for plaintiff in the sum of $200 and an order of abatement as prayed. Defendant appeals. Reversed and remanded.W. B. Ingersoll, of Oelwein, E. H. Estey, of West Union, and Jay Cook and Rollin J. Cook, both of Oelwein, for appellant.

A. E. Irvine, of Oelwein, and Ainsworth & Hughes, of West Union, for appellee.

DEEMER, C. J.

During the year 1907 the defendant city, at the instance or upon the request of many citizens of the town, for the purpose of creating an artificial lake in a park in the defendant city, undertook the erection of a reinforced concrete dam across a stream known as Otter creek, which flowed through the city, or a part thereof. This dam was built near the south line of section 33 of the township in which the city is located, and upon ground belonging to the city. No condemnation proceedings were instituted, but the city obtained many voluntary conveyances from parties owning lands which would be affected by the dam, among whom was plaintiff. Plaintiff, being the then owner of the south 30 acres of the S. E. 1/4 of the N. W. 1/4 of section 33, made a deed to the defendant which granted to the city, among other things:

“The right to maintain the dam, as above set forth, and overflow the lands above described, belonging to us, in such way and manner as shall be necessary in judgment of said city of Oelwein to create and establish and maintain said lake as above set forth forever. And it is further agreed that the said city of Oelwein shall have the right to the use of all lands overflowed for the purpose of boating, fishing, etc., and for all other purposes incident to the creation and maintenance of said lake for park purposes and the establishment and maintenance of said park upon the premises hereinbefore described, purchased from the said G. A. Oelwein, the said party above named as grantors hereby and herein expressly waive any claim for damage from the said city of Oelwein resulting from the use and occupancy of said land in the way and manner above set forth. * * * It is expressly understood and agreed that the grant and right herein conveyed shall continue and endure so long as the said premises or any part thereof purchased from the said G. A. Oelwein shall be used for park purposes; and the said Isabella Irvine and Katherine Miles hereby and herein relinquish all their right of dower in and to the above described premises.”

Contracts were made for the construction of the dam, and the city proposed to issue its warrants for $2,500 in payment thereof. The contractors were not satisfied with these warrants alone, and, to protect them against loss, 45 citizens, among whom was plaintiff, executed to said contractors a written guaranty of the payment of said warrants. The conveyance was made on July 30, 1906, and the guaranty on April 19, 1907. The dam was built by the contractors and completed on or about November 2, 1907, and water arose to the height of the dam and backed upon the lands within two or three weeks of its completion. The dam was built of concrete, steel, and iron, and in as substantial and permanent a manner as possible; but when originally constructed it was supplied with a wooden gate, which was afterward supplanted by an iron one, weighing about 1,000 pounds, and operated by cogs and a pinion wheel. This gate goes to the bottom of the dam, and is about 4x6 feet, 3 inches thick. By raising it, all the water confined by the dam may be let out. This gate is not used to relieve flood water or ice and all such flow over the top of the dam. Very little water passes through the dam itself, and it is as permanent as is possible to make such a structure; the witnesses saying that it could only be destroyed by dynamite.

At the time of the construction of the dam and down until October 27, 1908, one Alice Guthrie was the owner of the W. 1/2 of the S. W. 1/4 of section 28, in the same township as the one in which the dam was built, known in the record as the “Holroyd Eighty,” which was more or less affected by the backwater of the dam, which fact was well known to plaintiff. On the last-named date, she, in consideration of the sum of $3,000, conveyed the same by warranty deed to plaintiff herein, covenanting that they were free and clear from all incumbrances and fully warranting the title. The price per acre was $37.50. The deed was delivered, and plaintiff thereunder became entitled to the possession and use of the land. Without any notice to the city to remove or abate the dam, plaintiff commenced this action to recover damages and to abate the nuisance caused by the dam, on January 6, 1911. This was followed by various other pleadings, to some of which we shall refer during the course of the opinion.

Doubts having arisen regarding the legality of the proceedings of the city in the premises, the Legislature, by an act passed April 12, 1909, undertook to legalize the same as fully as if they had in all respects been in strict conformity to law. In the original petition filed in the case, plaintiff alleged that the dam of which he complains was and is a permanent concrete structure, and that it caused the water to back up and overflow, not only the 80-acre Holroyd tract, but also the N. 1/2 of the S. E. 1/4 of the S. W. 1/4 of the same section, which plaintiff had owned for many years. The exact allegations as to damages are as follows:

“That the effect of the erection of said dam across Otter creek, at the place above mentioned, was to cause the water to raise in said creek, and flow back onto the plaintiff's land, thereby submerging a large quantity of land in ordinary stages of water, and in flood seasons, to cover a large tract on both sides of said creek of the plaintiff's land. That, previous to the erection of said dam, the plaintiff was enabled to cross said creek from one side to the other on his land, at most any point along said creek, by easy fording. That, since the erection of said dam, he is unable to cross from one side to the other except by boat. That the plaintiff has been damaged on account of the wrongful act of the defendant, in overflowing his land, in the sum of $2,500.”

On September 17, 1912, plaintiff filed a supplemental petition in which he charged:

“That the flooding and overflooding of plaintiff's land alleged in the original petition herein has been continued by the defendant through the years 1911 and 1912. That the water standing upon the plaintiff's land has become stagnant and has accumulated scum and filth and has destroyed the timber and grasses growing on said land. That the defendant threatens to continue the overflowing of plaintiff's land, and, unless enjoined from so doing, the damages occasioned thereby will accrue from year to year and the value of plaintiff's land will be permanently destroyed. Whereas, plaintiff asks that he have judgment for the sum of $300 in addition to the amount originally asked in the petition herein on account of the damages caused by the flooding of the lands since the filing of the original petition, and that the defendant be enjoined and restrained from continuing or maintaining the dam and from overflowing and flooding plaintiff's land, and for interest and costs as prayed in the original petition herein.”

After trial, and after submission of the case to the court on various motions, plaintiff was permitted to file another pleading, called an amendment to the supplemental petition, in which he alleged:

“And plaintiff has been damaged by reason of such wrongful acts of the defendant in flooding and overflowing his said land during the said years, 1911 and 1912, in the sum of $300.”

Among other things defendant pleaded plaintiff's guaranty of the payment of the warrants as a complete defense to the action; that plaintiff was not the owner of the land until long after the dam was constructed and the water backed up; and that he is not the assignee of any claim for damages on account thereof--the conveyance by plaintiff to defendant of his lands for the purpose of waiving damages to his lands by the overflow of the water. It admitted the construction of the dam, and that it was a permanent structure, and pleaded the legalizing act already referred to, and further pleaded that plaintiff orally requested the defendant to erect the dam before any steps in that direction had been taken. Some other matters were pleaded in defense which need not be mentioned.

Plaintiff demurred to some of these defenses, and the demurrer was sustained in part and overruled in part. No attention need be paid to these rulings, as they are not now challenged, and so are not involved in what we shall say regarding the merits of the case. Just before the taking of the testimony began, the following record was made:

“Comes now the defendant and moves the court to require the plaintiff to elect whether he will proceed in the trial of this case upon his claim for permanent damages for the construction of said dam, as set forth in his original petition, filed herein, or whether he would proceed upon his claim for injunction and damages up to the time of this trial, as set forth in his supplemental petition herein. And the plaintiff thereupon made the following election: The plaintiff elects to consider the damages as continuing damages, and to stand upon the entire pleading as a pleading of continuing damages. The defendant thereupon renewed its motion as follows: ‘Comes now the defendant and moves the court to require the plaintiff to elect whether he will proceed in...