McAdams v. Davis

• Citation: 202 N.W. 515,200 Iowa 204
• Decision Date: 10 March 1925
• Docket Number: 36443
• Parties: W. M. MCADAMS, Appellee, v. JAMES C. DAVIS, Director General of Railroads, Appellant
• Court: Iowa Supreme Court

202 N.W. 515

200 Iowa 204

W. M. MCADAMS, Appellee, v. JAMES C. DAVIS, Director General of Railroads, Appellant

No. 36443

Supreme Court of Iowa, Des Moines

March 10, 1925

REHEARING DENIED JUNE 25, 1925.

Appeal from Mahaska District Court.--CHARLES A. DEWEY. Judge.

ACTION to recover damages claimed to have been sustained by the flooding of plaintiff's land, due to the placing of rock about the abutments of a bridge belonging to the defendant. There was a verdict for the plaintiff, and the defendant appeals.--Affirmed on condition.

Devitt & Eichhorn, J. G. Gamble, and A. B. Howland, for appellant.

McCoy & McCoy, for appellee.

FAVILLE C. J. STEVENS, DE GRAFF, and VERMILION, JJ., concur.

OPINION

FAVILLE, C. J.

Appellee is the owner of a farm consisting of eighty acres. It lies immediately north of the right of way of appellant. The North Skunk River traverses the lands of appellee in a southerly direction, and passes under the tracks of appellant under a bridge and trestle work which are located immediately south of appellee's lands. It is the contention of appellee that appellant placed large quantities of rock about the abutments of the bridge and adjacent to the trestle, and also closed a culvert that extended through the embankment at a point a short distance east of the bridge, and thereby narrowed and confined the channel of the river and closed a small creek that passed through the culvert; and that, as a result of said acts, the lands of appellee were flooded.

I. Appellant's first assignment of error is as follows:

"The court erred in overruling the objections of the appellant to the testimony of Don B. Russell, all as shown on pages 58, 59, 60, 67, 68, 69, 70, 71, 72, 73, 74, 75, and 76 of appellant's abstract."

In Thompson v. Illinois Cent. R. Co., 177 Iowa 328, 158 N.W. 676, we said:

"The assignments of error are without reference to rulings, save to the pages on which are to be found en masse, objections sustained or overruled. No propositions or points on which appellant relies are stated, nor are citations made thereunder; and the argument merely states the rulings or refers to certain pages of abstract for grounds of complaint. We must decline to search through pages of the abstract for the particular ruling, among several, to which exception is taken, or to look there for the argument in support of objections. The lines of the abstract are numbered, for the purpose, among other things, of directing attention of the court to the precise ruling complained of; and if it is entitled to any consideration, it is not too much to exact that it be clearly stated in the assignment of error, and, where found and definitely pointed out, that of the proposition or point relied on as showing it to be erroneous or correct be clearly expressed under numbers corresponding with that of the assignment, and that this numbering be followed in argument or elaboration."

This rule has been followed in Reynolds & Heitsman v. Henry, 193 Iowa 164, 185 N.W. 67, and other similar cases.

The assignment is too general for us to consider the error relied upon in regard to the admission of the testimony of this witness. We cannot be expected, under a mere general reference to certain pages of the abstract, to search the same for the purpose of ascertaining whether error was made by the court in receiving or rejecting testimony. We find, however, no reversible error pointed out by appellant in respect to the admission of the testimony of the witness Russell. The witness was an expert. It appears that the proper foundation for his testimony was laid, and that the evidence received was material and pertinent. If error is predicated upon specific objection to any portion of the testimony, it should have been pointed out; and we fail to find error in any of the matters urged in respect thereto.

II. Complaint is made by appellant of the submission to the jury by the court of the alleged negligence on the part of appellant in closing a culvert, through which a creek flowed, about seventy-five feet east of the bridge. Appellant's contention is that there is no evidence showing that the closing of the culvert caused any injury to appellee's crop, and that, therefore, it was error on the part of the court to submit this ground of negligence to the jury.

The area drained by the creek which formerly passed through the culvert was comparatively small. Before the culvert was closed, the waters passed through it, and were thereafter discharged into the river. By the closing of the culvert, the waters were diverted straight west to the river; and there was evidence tending to show that the closing of the culvert and the diversion of the stream tended to retard the flow of water from appellee's land that had previously been carried by the creek when it flowed through the culvert.

There was sufficient evidence in the record to carry to the jury the question as to whether or not the closing of the culvert contributed to the flooding of appellee's lands. We think that the court did not err in submitting to the jury this ground of negligence.

III. Error is predicated on the failure of the court to give an instruction requested by appellant to the effect that appellant could, in any event, only be liable to appellee for such additional damage to his land, if any, from the overflow of his land, as directly resulted from the negligent acts charged against appellant.

It appears from the evidence that appellee's land was subject in some degree to overflow, regardless of the...