Moore v. Chi., B. & Q. Ry. Co.

• Decision Date: 10 September 1888
• Court: Iowa Supreme Court
• Parties: MOORE v. CHICAGO, B. & Q. RY. CO.

75 Iowa 263

39 N.W. 390

MOORE

v.CHICAGO, B. & Q. RY. CO.

Supreme Court of Iowa.

September 10, 1888.

Appeal from district court, Montgomery county; H. E. DENNER, Judge.

This is an action in equity, in which the plaintiff seeks to enjoin the defendant from obstructing the natural flow of the West Nodaway river, by which proposed obstruction it is claimed that the lands of the plaintiff will be inundated and overflown by the waters of said stream. There was a trial to the court, and a decree for the plaintiff. Defendant appeals.Smith McPherson, for appellant.

C. E. Richards, for appellee.

ROTHROCK, J.

1. The evidence in the case discloses the following state of facts: The plaintiff has been for many years the owner of a farm which is for the most part situated on bottom-land, on the east side of the Nodaway river. The defendant's line of railroad was built through Montgomery county in 1869, and it crosses said river about one mile west of the village of Villisca. When the road was constructed it spanned the river by a wooden Howe truss bridge, which was 137 feet in length, and rested on piling driven in the ground. At each end of the bridge there was trestle-work some 15 feet in height, and upon which the railroad track was laid. The length of this trestle-work at the east end of the bridge is about 316 feet, and at the west end it is about 485 feet in length. From the east end of the trestle-work on the east side of the river there is a solid earthen embankment for about 1,000 feet, at which point there is another open trestle-work 75 feet in length and 15 feet high. The plaintiff's farm is on the north side of the railroad, and its west line is about 150 yards east of the river and 75 yards from the east trestle approach to the bridge. It appears that the low bottom-lands adjoining the river were subject to overflow to some extent at times of high water, before the railroad track was constructed. The evidence shows quite satisfactorily that, by reason of the obstruction caused by the railroad, in times of freshets in the river the overflow water is from two to four feet higher on the plaintiff's land on the north side of the railroad than it is on the south side. We think no other reasonable conclusion can be drawn from the evidence in the case. The plaintiff does not complain of the road as it is at present, notwithstanding it raises the water higher on his land than it would be if the railroad had not been constructed. His complaint is based upon the fact that the defendant is about to close up the trestle-work at each end of the bridge by solid earthen embankments, and that, if it should be permitted to do so, the flow of water will be so obstructed in times of freshet in the river that it will be raised much higher, and inundate more of his land, and remain upon the land for a longer time than it other wise would. We think this proposition is sustained by the evidence. Indeed, it appears to us to be a logical conclusion from the practicably undisputed fact that as the road, as it now is, with some 800...