Miller v. Keokuk & Des Moines R'Y Co.

• Decision Date: 20 September 1883
• Citation: 16 N.W. 567,63 Iowa 680
• Parties: MILLER, TRUSTEE, ET AL. v. THE KEOKUK & DES MOINES R'Y CO. ET AL
• Court: Iowa Supreme Court

16 N.W. 567

63 Iowa 680

MILLER, TRUSTEE, ET AL. v. THE KEOKUK & DES MOINES R'Y CO. ET AL

Supreme Court of Iowa, Des Moines

September 20, 1883

Appeal from Lee District Court.

IN 1875, one Adam Hine owned certain land described in the petition. On the twenty-eighth day of April, 1875, a right of way for railroad purposes, one hundred feet wide, was condemned through said land by the defendant, the Keokuk & Des Moines Railway Company, and the said company paid therefor $ 725. During the same year, the Keokuk & Des Moines Railway Company constructed its road over said land. In the construction of said road it became necessary to raise the track above the plane of the ground, and, to obtain material for that purpose, a ditch was dug on each side of the track. One of these ditches was so dug that it communicated with the Des Moines river. The portion of the premises now in controversy lies between the railroad and the Des Moines river, and is lower than the banks of the river.

In 1877, Adam Hine and his wife conveyed the premises in controversy to their son, Charles W. Hine. In January, 1879 Charles W. Hine conveyed the same land to his mother Margaret F. Hine. In January, 1880, Margaret F. Hine, with her husband, Adam Hine, conveyed the land to Daniel F Miller, Jr., as trustee for her, with authority for her during her natural life, to occupy the land and use it as she pleases, and to receive the rents and profits of it during her natural life, with remainders and trusts, all subject to her right to the absolute use of the land, and to receive the rents and profits during her natural life. In June, 1881, a rise in the Des Moines river caused the water to back through the ditch and to flood a portion of the premises in question, then in the possession of the plaintiff, Margaret F. Hine, destroying a part of the crop growing thereon. On the first day of September, 1881, Daniel F. Miller, Jr., as trustee, and Margaret F. Hine, united in an action against The Keokuk & Des Moines Railway Company and The Chicago, Rock Island & Pacific Railway Company, entitling the petition, "at law and in equity," asking damages in the sum of $ 300, and praying "for a decree enjoining defendants to cause to be erected a sufficient number of dams across said ditch to protect said realty from being flooded with water coming out of said ditch, when there is or may be a heavy rise in said river." Afterwards an amended petition was filed, claiming damages in the sum of $ 500.

The cause was tried to a jury, and a verdict was returned against both defendants for $ 339. A motion to set aside the verdict and for a new trial was sustained as to The Chicago, Rock Island & Pacific Railway Company, and overruled as to The Keokuk & Des Moines Railway Company. A motion in arrest of judgment on the grounds, amongst others, of a misjoinder of parties, both plaintiff and defendant, and that the petition does not state facts sufficient to constitute a cause of action, was overruled. Thereupon the plaintiffs, against the objection of the defendants, were allowed to dismiss the equitable part of their petition, and judgment was rendered in favor of plaintiffs against The Keokuk & Des Moines Railway Company for the sum of $ 339 and costs. The defendant, The Keokuk & Des Moines Railway Company, appeals.

MODIFIED AND AFFIRMED.

Anderson Bros. and Davis, for appellant.

Daniel F. Miller, Sr., for appellees.

OPINION

DAY, CH. J.

I. When the cause came on for trial, counsel for plaintiffs demanded a jury, to which defendant's counsel objected, for the reason that the cause is an equitable one, and triable by the court only. The court held that the plaintiffs were entitled to a jury trial for the purpose of determining the amount of damages. This action of the court is assigned as error. The appellee claims that the action is brought under section 3331 of the Code, which provides, in a case of nuisance, that "a civil action by ordinary proceedings may be brought thereon by any person injured thereby, in which action the nuisance may be enjoined or abated, and damages also recovered therefor." Under this section, it seems that in an action at law damages may be recovered for a nuisance, and the nuisance itself may be enjoined. In view of the provisions of this section, we think the plaintiffs were entitled to have their damages assessed by a jury, notwithstanding the fact that they coupled with their claim for damages a prayer that the defendants might be enjoined from continuing the ditch in such condition as to injure the plaintiffs.

II. The defendant insists that there is a misjoinder of parties plaintiff. This objection was raised for the first time in the motion in arrest of judgment. The objection, to be available, should have been raised by motion to strike out the party improperly joined. Ind. School Dist. of Graham Tp. v. Ind. School Dist. No. 2., 50 Iowa 322; Dubuque County v. Reynolds, 41 Iowa 454; Mornan v. Carroll, 35 Iowa 22.

III. The defendant further insists that there was a misjoinder of parties defendants. This objection, like the preceding one was raised for the first time in the motion in arrest of judgment. The objection cannot be so raised for the first time. It is not even ground of demurrer, but should be made by motion to strike out the party improperly joined. See Turner v. First National Bank of Keokuk, 26 Iowa 562, (567,) and cases cited; King v. King, 40 Iowa 120; Dist. Tp. of White Oak v. Dist. Tp. of Oskaloosa, 44 Iowa 512. The case of Cogswell v. Murphy, 46 Iowa 44, relied upon by appellant, is not in point. In that case there was a misjoinder of causes of action as well as of pa...