Loughran v. City of Des Moines

• Decision Date: 05 October 1887
• Citation: 34 N.W. 172,72 Iowa 382
• Parties: LOUGHRAN v. CITY OF DES MOINES.
• Court: Iowa Supreme Court

72 Iowa 382

34 N.W. 172

LOUGHRAN

v.CITY OF DES MOINES.

Supreme Court of Iowa.

October 5, 1887.

Appeal from circuit court, Polk county.

The plaintiff, S. J. Loughran, is the owner of a lot in the city of Des Moines upon which there is a dwelling, in which he resides with his family. He brought this action to recover damages of the city for wrongfully and negligently constructing a sewer through and over said lot, in such a manner that the contents thereof were discharged from the mouth or outlet of the sewer upon said lot on the margin of the Des Moines river, and so near the said dwelling-house that the air became polluted, and the locality unhealthy to such an extent that the plaintiff's property became almost worthless, and, by reason of the inhalation of the noxious gases arising from said sewer, the plaintiff and his family became sick, to his great damage. There was a trial by jury, which resulted in a verdict and judgment for the plaintiff. Defendant appeals.James H. Detrick and Hugh Brennan, for appellant.

Cole, McVey & Clark, for appellee.

ROTHROCK, J.

1. Counsel for appellee insist that the assignments of error are not sufficiently specific to require this court to consider them. After this question was made by counsel, the appellant, by leave of the court, amended the assignment of errors so that no fair objection now exists as to their form, and we will proceed to consider such as we think demand the attention of the court.

2. It is not denied that the city constructed a sewer through the plaintiff's lot, and the fact is established beyond question that the contents of the sewer were discharged from its mouth within about 75 feet of the plaintiff's house, and that the effect of such discharge was to create a stench in and about the house, of which the plaintiff might justly complain. It is claimed, however, that the plaintiff has no ground of complaint, because the sewer was constructed through the plaintiff's premises with his consent. It is true that the plaintiff consented that the excavation might be made through the lot, and the sewer constructed; but the jury were warranted in finding, from the evidence, that the consent was to construct a mere overflow sewer, and not one to be used for the constant discharge of sewage. As we understand, the system adopted by the city is such that, by the use of catch-basins, surface water is carried off by the sewers, and the plaintiff's claim is that the consent given by him was for a sewer through his lot for an overflow at times when there would be an unusual discharge of water through the sewers. This claim finds sufficient support in the evidence to authorize a finding to that effect, and we may say that the objection that the plaintiff was not entitled to recover damages cannot be sustained. The questions in the case which demand consideration pertain to certain rulings of the court as to the measure of damage, and as to the exclusion of certain evidence offered and introduced by the defendant.

3. The court instructed the jury upon the question as to the measure of damages as follows: “If you find for the plaintiff on the negligent and improper construction of the sewer, then his measure of damage will be the difference in the rental value of the property prior to the construction of the sewer, and after its construction, from the time that the sewer became injurious to the property until August 5th: provided you find that the defendant had not obtained a license or permit to construct the sewer, and further find the plaintiff entitled to damage by reason of sickness of plaintiff and his family, and expenses incurred. Then you will find such additional sum as will compensate plaintiff for his loss of time and expense incurred by reason of sickness of himself and family.”

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