Mason City & Ft. D. R. Co. v. Bd. of Sup'rs of Wright Cnty.

• Decision Date: 10 June 1908
• Citation: 116 N.W. 805
• Court: Iowa Supreme Court
• Parties: MASON CITY & FT. D. R. CO. ET AL. v. BOARD OF SUP'RS OF WRIGHT COUNTY ET AL.

116 N.W. 805

MASON CITY & FT. D. R. CO. ET AL.

v.BOARD OF SUP'RS OF WRIGHT COUNTY ET AL.

Supreme Court of Iowa.

June 10, 1908.

Appeal from District Court, Wright County; J. H. Richard, Judge.

In a drainage proceeding instituted according to law, the board of supervisors of Wright county established what is known as drainage district No. 11. This drainage district contemplated the construction of a ditch which crossed the right of way of the railway company, which is designated as the Mason City & Ft. Dodge or the Chicago & Great Western Company. The construction of this ditch necessitated the building of a bridge in the opening of the railway embankment at that place. The company filed its claim for damages with the board of supervisors, and from the action of the board thereon the company appealed to the district court, where a hearing was had before a jury resulting in a verdict for the sum of $2,600. The railway company filed a remittitur of $400, and judgment was rendered in its favor for the sum of $2,200. The board of supervisors and the petitioners for the ditch appeal. Affirmed.Peterson & Knapp, for appellants.

Birdsall & Birdsall and Healy & Healy, for appellees.

DEEMER, J.

There are four principal questions involved in this appeal. Defendants contend (1) that under the facts disclosed it was the duty of the railway company to build, erect, and maintain the bridge at its own expense because it crossed a stream or natural water course; (2) that under Code, § 2021, it was the duty of the company to construct the bridge; (3) that the court erred in giving its instruction No. 6 to the jury, for the reason that the matter involved was a jury question; and (4) that the court erred in giving its instruction No. 7, for the reason that the railway company was not entitled to anything for maintenance of the bridge. In this connection it is also claimed that the court erred in permitting witnesses to give the cost of the maintenance of the bridge. We shall consider these matters in the order stated. There is little or no dispute over the facts, and the questions are largely of law. There was no bridge or opening in the railway embankment at the place where it was proposed that the ditch should cross the right of way. At a point about 250 feet distant, the company had constructed and was maintaining a culvert across its right of way and through the embankment, which was satisfactory to the adjoining landowners, and, so far as can be judged from the testimony, adequate to take care of all water which naturally crossed the right of way. None of these landowners are complaining of the insufficiency thereof, nor could they in this proceeding. If the board of supervisors had seen fit to utilize this culvert, there might be some question as to the duty of the railway company to take care of this increased flow of water. But it did not do so. On the contrary, it proposed another opening in the embankment and the construction of a bridge thereover. The drainage act seems to provide in express terms for such a case, and, in view of that fact, the common-law obligations of the railway company are not deemed material to our inquiry. That law provides that “whenever the board of supervisors shall have established any levee or drainage district or change of any natural water course and the levee, ditch, drain or water course crosses the right of way of any railroad company, and the place where and the manner and method of crossing such right of way shall have been determined as provided in the preceding section, such railroad company shall within thirty days after being notified by the county auditor to construct the same and the time within which the work must be completed, proceed to construct such levee, ditch, drain, or change of natural water course in accordance with the plans and specifications as shown by the plat and profile of the engineer. If such railroad company shall fail, neglect or refuse to do so within the time fixed in such notice, the auditor shall cause the work to be done under the supervision of the engineer in charge of the improvement and the railroad company shall be liable for the cost thereof, to be collected by the county in any court having jurisdiction. All other proceedings in relation to railroads shall be the same as provided for individual property owners within the district, except that the cost of constructing the improvement across its right of way shall be considered as an element of its damages by the appraisers thereof; and the commissioners to assess benefits shall fix and determine the actual benefits to the property of the railroad company within the levee or drainage district and make return thereof with their regular return. Such special assessment shall be a debt due personally from the railroad company, and unless the same is paid by the railroad company as a special assessment, it may be collected in the name of the county in any court having jurisdiction.” As will be noticed this act expressly provides that the cost of constructing the improvement across its right of way shall be considered as an element of damages. Long after the proceedings were instituted, the Legislature amended this law. See section 3, c. 95, p. 101, Acts 32d Gen. Assem. This act was not passed until after the case was tried in the court below, and manifestly is not controlling here. Appellants contend that the ditch was located along the route of a natural water course, and that it crossed the railway at a point where a natural water course crossed it, and there is testimony to that effect. But the evidence also shows that the culvert theretofore maintained by the railway company to take care of the water was satisfactory to all concerned, and this is an attempt by proceedings under the drainage act to compel the company to change its culvert or to maintain another opening and bridge, not to take care of the water which naturally flowed in the original stream, but water collected from a large drainage district, to be discharged into what we may concede was theretofore the natural course of surface water. That the drainage act quoted did not contemplate such a proceeding is quite apparent from the language already quoted. This much as to plaintiff's duty under the common law.

2. Section 2021 of the Code reads as follows: “Every such corporation shall maintain and keep in good repair all the bridges with their abutments which it may construct for the purpose of enabling its railways to pass over or under any turnpike, road, canal, water course or other way, and shall be liable for all damages sustained by any person in consequence of any neglect or violation of the provisions of this chapter.” Taking this for a basis, it is argued by appellants that it was the duty of the railway to construct and maintain the bridge over the drainage ditch proposed to be constructed. Manifestly this statute is inapplicable to the facts here presented. Before it was proposed to construct the drainage ditch, the railway company had through an opening in its embankment and the...