OPINION
ALBERT, J.
The
plaintiff owned or occupied a 93-acre tract of land close to
the defendant town, in which, at the time of controversy, he
was pasturing 65 head of cattle and a herd of hogs. Through
this land was constructed a county drain. The defendant town
lies to the north and east of the land of the plaintiff.
About 1912, defendant established a sewer system, with a
disposal plant. The outlet of this sewerage system was
through a tile drain, thence into an open
ditch, and into the ditch constituting the improvement in a
drainage ditch running through plaintiff's land.
On the
morning of July 16, 1923, plaintiff discovered that his
cattle were suffering from some physical ailment. One of them
was dead at the time; many were sick; some afterwards died;
others lost flesh. It is for this damage that plaintiff seeks
recovery herein. He bases his action on the proposition that
the defendant town failed to properly care for its disposal
plant, and by that means permitted the same to overflow, and
to contaminate and poison the water; and that for this cause
his cattle contracted the disease from which they died or
suffered.
It
seems to be undisputed in the record that the disease from
which they suffered was hemorrhagic septicaemia. On discovery
of the condition of the cattle, four state veterinarians were
called, or came to inspect and investigate the condition of
the cattle; and as we view this case, it must largely turn
upon the testimony of these witnesses. One of these
veterinarians, Spence by name, says:
"I
found the cattle died with hemorrhagic septicaemia. This
disease is caused by an organism, a bacteria. It is
contracted by taking into the system bacteria that cause the
disease,--usually through the digestive tract. This disease
could be contracted by drinking contaminated water, or water
contaminated by sewerage. I examined the pasture. We were
looking to find causes of infection. I was making this
inspection at the request of the state of Iowa. We could see
no source of contamination outside of the stream. By seeing
nothing, I mean nothing to cause this disease. The bacteria
that produces this disease may come from any kind of
pollution or organic matter. It might come from sewerage,
decayed vegetation, or it might come from excrement of hogs,
or any other source whereby there is decayed organic matters.
I was not able to determine from the post-mortem examination
of these cattle, the actual cause of their death."
Wolf,
another veterinarian, says:
"I
helped to post three. We found hemorrhagic septicaemia and
blood poisoning. This disease is an infectious disease. It is
spread through decayed matter. We made examination of the
premises, to find the cause of their
particular trouble. We could not find out anything unless it
was through the polluted water from this stream. I think the
infection from which these cattle died would be caused by
decomposed matter of any kind. I do not know where the
bacteria came from that caused their death."
Odgers,
another veterinarian, testified:
"In
my opinion, these cattle died from hemorrhagic septicaemia.
It spreads or is contracted through the digestive tract by
eating or drinking anything that contains micro-organisms. If
the organism is in polluted water by sewerage, and the
organism is in it, it could be contracted by drinking the
water. It might be in sewer water, or it might be in any
water. It might be contained in decayed or decomposed organic
matter. You might find it in any water at times. Vegetation
falling into the water and decaying might contain the
bacteria, but not necessarily. It is not necessarily found in
sewerage. I do not believe it could be produced by excrement
from hogs. I could not tell where the bacteria came from. I
do not know whether it came from the water of the drainage
ditch or vegetation or from roots, or was contained in
anything else they ate at the feeding place. It is impossible
to tell."
McIntyre,
another veterinarian, testified as follows:
"The
cause of their death was hemorrhagic septicaemia. We were
trying at that time to determine the source of this disease.
We made an investigation of the premises for that purpose. We
were not able to determine just what the source was. We did
not find the source of that trouble unless it came from the
water. Drinking water that had become polluted by sewerage
from sanitary sewers would not probably cause the disease,
unless it contained infection. Q. Would it be likely to
contain infection? A. Not necessarily. It could, and could
not. Q. Would you say that you could find no other source of
contamination other than the water? A. I could not see any
other than that. Q. What water do you mean? A. The drainage
ditch through the pasture. The disease from which these
animals died might have been caused by the presence of this
bacteria in something they ate or drank. I cannot say what
the particular source of the bacilli was at that time. It
originates from soil or water. It does not originate from
decomposed vegetation unless the seed of
infection is in it. I think I have known it to arise from
pasturage itself. We have no means of knowing. It might arise
from hard feeds given cattle, aside from pasturage. This is
one of the unknown things. The germs arise from some unknown
source, and grow in decayed organic matter."
The
record further shows practically all of the surface drainage
from the streets, yards, and stockyards in said town
everything on the surface draining down through the south
part of DeWitt and down through to this same ditch, and the
outlet into which the sewer ultimately empties. It carries
away the surface water. There are no catch basins and no
openings in the streets; nothing gets into the sewer system
except that which passes through...
