Latham v. Des Moines Elec. Light Co., 45396.

• Court: United States State Supreme Court of Iowa
• Writing for the Court: OLIVER
• Citation: 296 N.W. 372,229 Iowa 1199
• Parties: LATHAM v. DES MOINES ELECTRIC LIGHT CO.
• Docket Number: No. 45396.,45396.
• Decision Date: 18 February 1941

229 Iowa 1199
296 N.W. 372

LATHAM
v.
DES MOINES ELECTRIC LIGHT CO.

No. 45396.

Supreme Court of Iowa.

Feb. 18, 1941.

Appeal from District Court, Polk County; Russell Jordan, Judge.

Action at law for damages to real estate resulting from the breaking of a public sewer allegedly caused by an obstruction maintained therein by defendant, Electric Light Company. From judgment on directed verdict in favor of defendant, plaintiff appeals. Opinion states the facts.

Reversed.

Stipp, Perry, Bannister & Starzinger, of Des Moines, for appellant.

Bradshaw, Fowler, Proctor & Fairgrave, of Des Moines, for appellee.

OLIVER, Justice.

In April, 1939, plaintiff purchased a lot at the southeast corner of the intersection of West Fourth Street and Grand Avenue, Des Moines, Iowa, upon which was a three-

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story brick store and apartment building, erected in 1901. The north front of this building extends east along the south side of Grand Avenue from West Fourth Street to the alley which intersects the block.

On August 10, 1939, a large part of the foundation of this north front was torn out apparently by storm water which escaped from Bird's Run Sewer. The collapse of about 60 feet of the north wall of the building, with attendant damage, resulted. Thereafter, plaintiff brought this action at law against defendant, Des Moines Electric Light Company, for damages, alleging it was negligent in constructing and maintaining a conduit, which intersected and partly blocked said sewer. Trial to a jury resulted in judgment against plaintiff by directed verdict, and he appeals.

Bird's Run Sewer runs in a general southeasterly direction and carries storm waters from the district traversed by it into the Des Moines River several blocks east of plaintiff's property. In the 3/4 mile between its beginning and plaintiff's property it has a fall of 42 feet. The city had, in 1895, entirely enclosed it with limestone walls, a brick top and floor of oak plank. Later some portions of this floor had rotted out or had been washed out and had been patched with cement. Other spots were left covered with loose rock. At the place in question the interior dimensions of the sewer were 8 feet by 8 feet with perpendicular walls of limestone set in cement to a height of 4 feet, above which was a brick semi-circular arch or crown, 3 bricks in thickness. Except for the arched top the sewer was the shape of a square. It ran south and a little east as it crossed Grand Avenue running toward the approximate center of the north wall of plaintiff's building. Near the south side of the avenue it turned 47° toward the east and ran partly under the northeast corner of said building, which, at that place, was supported by steel I-beams. These I-beams rested upon piers at the sides of the sewer and crossed over the sewer above its top. Defendant's conduit ran east and west along and under Grand Avenue, about 10 feet north of said building, and intersected the southwest or south wall of the sewer about 60 feet west of the northeast corner of the building. At this point the sewer had partly completed its turn and ran somewhat south of east so that the conduit crossed through it diagonally.

The conduit contained electric wires and cables, and had been first placed in the street in 1900. At this place the top of the sewer was only a short distance below the pavement and there was insufficient room between the sewer and the pavement to accommodate the conduit in the form desired by the Electric Company, which secured consent of the city to cut into and occupy approximately 12 inches of the top of the sewer. However, the conduit, as actually laid into and across the sewer, occupied the top 40 inches, or about 2/5 of the face area of the sewer. In 1916, the grade of the street was lowered and defendant, with the consent of the city engineer, added another section to the side of the conduit, the vertical depth of which was not changed. Thus the conduit, with its supports, formed a solid rectangular box, 24 inches wide, which crossed the sewer diagonally and completely blocked its upper 40 inches.

On August 10, 1939, there was a very heavy, but not unprecedented, fall of rain. During this rain the first indication of trouble observed was water spraying up 5 or 6 feet from a crack in the cement sidewalk about 25 or 30 feet west of the northeast corner of the building. Next a piece of sidewalk, 10 or 15 feet long, fell in. Soon after another piece of sidewalk and an electrolier fell. In the hole under the sidewalk the water was “rushing and swirling”, “a young river running loose-boiling and flowing along”, carrying debris. It was “hitting up against the foundation of the building.” The pavement in the street was sinking and some of it disappeared. Shortly afterwards the north wall of the building began to sag and crack and the east half of this wall, except a few feet at the east end, fell a few hours later. Under this part of the wall the entire foundation and several feet of underlying earth had been washed away.

After the water subsided it was disclosed that the entire southerly wall of the sewer (about 60 feet) between the conduit and the building line had been washed away, and the top of the sewer had fallen in. The bottom of the sewer beneath the conduit had been gouged out and washed out to a depth of about 2 feet. Downstream from the conduit, throughout the length of the 60-foot break in the southerly wall of the sewer, most of its floor had been washed out, and in places the bottom was gouged out 1 to 2 feet in depth, although there were

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places where some of the floor, old planks and concrete remained. The northerly wall of the sewer was in good condition.

Fragments of green weeds were hanging to the north side of the conduit near the top of the sewer, apparently deposited there by the water. Upstream from the conduit the sewer was not broken and appeared to be in good condition, except for some places in the floor where the planks had rotted out. 40 or 50 feet above the conduit a 24-inch water pipe crossed the sewer 15 inches from its top and still...