Marshall Ice Co. v. La Plant

• Decision Date: 20 May 1907
• Citation: 111 N.W. 1016,136 Iowa 621
• Parties: MARSHALL ICE COMPANY AND CARRIE NELSON, C. W. NELSON, ANNA W. NELSON AND MATENA C. NELSON, Appellants, v. GEORGE W. LAPLANT
• Court: Iowa Supreme Court

111 N.W. 1016

136 Iowa 621

MARSHALL ICE COMPANY AND CARRIE NELSON, C. W. NELSON, ANNA W. NELSON AND MATENA C. NELSON, Appellants, v. GEORGE W. LAPLANT

Supreme Court of Iowa, Des Moines

May 20, 1907

REHEARING DENIED, MONDAY, DECEMBER 16, 1907.

Appeal from Marshall District Court.--HON. G. W. BURNHAM, Judge.

THE petition alleges that Carrie, C. W., Anna M., and Matena C Nelson constitute the Marshall Ice Company; that the above-named parties had leased a tract of land, including a portion of the bed of the Iowa river, for a term of ten years, constructed icehouses thereon, and occupied the same and had conducted the ice business there ever since; that in December, 1902, they acquired the said tract by a deed of conveyance from Walter A. and Victor C. Fallgatter and wives the grantors, retaining title to an adjacent and contiguous tract, whereon is located, constructed and had been maintained for forty years a milldam six and one-half feet high across the Iowa river; that thereby a head of water, or water level, far back in the river and tributaries to the height of the dam had been maintained, subject to the reasonable use of the Marshalltown mills; that this condition existed at the time of the conveyance, and relying upon its continuance, plaintiff expended large sums of money in erecting icehouses and equipping the same on the premises so conveyed; that for nearly twenty years plaintiffs and their assignors had conducted an ice business at that location, and built up a large trade, which, with their investment, now depends on the maintenance of the water level; that the artificial condition of the water was open and apparent at all times, and constituted an easement appurtenant to the premises purchased by plaintiffs; that the premises were purchased and the improvements made in contemplation of the maintenance of such artificial condition of the water level; that the defendant subsequent to said purchase procured a conveyance to himself from the grantors of the tract of land retained by the Fallgatters on which the milldam was constructed, and it is his purpose to destroy the said dam for the purpose of lowering the water level in said river; that should this be done irreparable injury would result and practically annihilate the plaintiff's property and ice business; that said business is dependent upon the maintenance of the water level, which can only be done by continuing the dam; that all plaintiff's improvements have been made in contemplation of the water level as it is, and it is prayed that the defendant be temporarily enjoined from interfering with the dam save by the use thereof in operating the mill appurtenant thereto, and from preventing plaintiffs, or their grantees or assigns, from entering upon the premises and repair or maintain the said dam, and that upon hearing said injunction be made permanent. Copies of the lease and deed were attached to the petition, and the temporary writ of injunction granted. The plaintiff afterwards amended the petition in response to the motion for a more specific statement, which amendment need not be set out save in that it is alleged that the artificial condition of the water constitutes an appurtenance to the premises conveyed to these plaintiffs, and that the tract on which the dam is situated is charged with the servitude of maintaining such artificial condition of the water. The court then upon motion struck out that portion of the petition and amendment alleging the expenditure for improvements on the land under the lease. The plaintiffs then filed another amendment, alleging that at the time of the conveyance these plaintiffs owned ice houses and other equipments located on the premises, and that the ice business had been maintained prior thereto by virtue of said written lease with full knowledge of the grantors; that the icehouses and equipment had been used and occupied in such manner and for such purpose for many years prior to the conveyance, and have been used and occupied since; that the principal value of the premises conveyed to plaintiffs consisted in the use that might be made of them by reason of the conditions and situation. Thereupon the defendant filed a general demurrer, which was sustained by the court.

Some months later the plaintiffs filed a third amendment to the petition, alleging the leasing of privileges from riparian owners for the cutting and harvesting of ice up the river from the dam, and numerous leases were attached; that these were secured in contemplation, and their only value was based on the maintenance of conditions as they were; that these were procured at considerable expense, and their value would be destroyed by the removal of the dam. Plaintiffs further alleged that they were in full possession of the premises prior to the conveyance under the lease, and have continued without interruption since in the obvious, open, and apparent exercise of their rights, and have expended large sums of money in constructing icehouses and in their equipment for harvesting and selling ice, all of which would be a permanent injury, and they would suffer great loss by the destruction of the dam as threatened; that the immediate grantors of plaintiffs are the riparian owners of the premises below the dam and from which the water is held back, and were such at the time of the conveyance. Shortly afterwards the defendant filed an answer specifically admitting or traversing every allegation in the plaintiff's petition. The partnership was admitted, also the execution of the lease and deed, and that plaintiffs are the owners of the real estate as alleged, that the dam was constructed across the river, that the dam backed water up as stated, and that it is the purpose of defendant to remove said dam and restore the water to the condition it was prior to its construction.

Defendant put in issue all other material allegations of the petition and amendments thereto, and by way of affirmative defense the defendant alleged he is the owner of a tract of three hundred and fifty acres of land through which Asher creek, tributary to Iowa river, passes, and to which the backwater occasioned by the dam causes great damage, and that a large amount of land owned by other parties is injured by the damming of the river; that in 1904, in an action brought by defendant against Fallgatter Bros., the then owners of the dam, to prevent raising the same by the use of flushboards, their right to use the same for the purpose of running the mill was established by grant and prescription; that thereafter this defendant, assisted by other riparian proprietors, negotiated with Fallgatter Bros. for the purchase of the real estate upon which the dam is constructed; with a view of removing the same and thereby avoiding further injury to their land; that the purchase was made with the express object of removing the dam; that this was well known to C. W. Nelson, the managing partner of plaintiffs, and that, though being aware of such negotiations, and their object, he made no objection thereto; that defendant paid the consideration in reliance upon there being no objection on the part of plaintiffs, and for this reason they are forever estopped from claiming any easement or servitude in the estate. The defendant further alleged specifically the injury to the land because of the back-up of the water due to the dam of the river, and that its removal would be of great value to the defendant and other riparian owners. The defendant further answered that the only right to dam the river was for the purpose of operating the Marshalltown Flour Mills, and upon ceasing to use the water for that purpose the right to continue the dam was terminated; that this was well known to plaintiff, and defendant denied the right of plaintiff to trespass upon his property for the repair or maintenance of the dam. Plaintiffs further alleged that the defendant had disposed of to the city of Marshalltown whatever easement or right he had, and that this defendant had no right to continue the dam in the river, and that the same was a public nuisance and in contravention of the criminal and civil laws of the state. A few days later the defendant filed a motion, supported by affidavits, asking that the temporary writ of injunction be dissolved. This motion was sustained, and from this ruling plaintiffs appeal.

Reversed.

C. H. Van Law, for appellants.

Boardman & Lawrence, Meeker & Meeker and Theo. F. Bradford, for appellee.

OPINION

LADD, J.

To the petition with two amendments the defendant interposed a general demurrer, which was sustained. Plaintiffs then filed another amendment, and to the petition as so amended the defendant answered specifically every allegation of the petition and amendments, and then moved that the temporary writ of injunction be dissolved. The motion was sustained, and from this ruling the appeal was taken.

Appellee insists that the points now made by appellants were involved in the ruling on the demurrer, and that such ruling must be accepted as the law of the case. In filing an amendment to the petition after the demurrer was sustained, the plaintiffs necessarily waived any error in the ruling. Long v Furnas, 130 Iowa 504, 107 N.W. 432; Frick v. Kabaker, 116 Iowa 494, 90 N.W. 498; Frum v. Keeney, 109 Iowa 393, 80 N.W. 507; Krause v. Lloyd, 100 Iowa 666; Wyland v. Griffith, 96 Iowa 24, 64 N.W. 673. This merely obviated any complaint thereof on appeal, but such ruling is not to be regarded as an adjudication in such sense that the same question may not be raised in some other way. Geiser Mfg. Co. v. Krogman, 111 Iowa 503, 82 N.W. 938. Had the defendant moved to strike the last amendment as being a repetition of matter, in so far as material, contained in the petition, and this...