Nall v. Iowa Elec. Co., 48650

• Decision Date: 05 April 1955
• Docket Number: No. 48650,48650
• Citation: 69 N.W.2d 529,246 Iowa 832
• Parties: Robert P. NALL, d/b/a Bob Nall Chevrolet Company et al., Appellants, v. IOWA ELECTRIC COMPANY, an Iowa Corporation, Appellee.
• Court: Iowa Supreme Court

Page 529

69 N.W.2d 529

246 Iowa 832

Robert P. NALL, d/b/a Bob Nall Chevrolet Company et al., Appellants, v. IOWA ELECTRIC COMPANY, an Iowa Corporation, Appellee.

No. 48650.

Supreme Court of Iowa.

April 5, 1955.

Thomas H. Tracey, Manchester, Pryor, Hale, Plock, Riley & Jones, Burlington, and M. M. Cooney, Dubuque, for appellants.

Donnelly, Lynch, Lynch & Dallas, Cedar Rapids, Hubert Carr, Manchester, and John Gaston, Jr., Cedar Rapids, for appellee.

WENNERSTRUM, Chief Justice.

This appeal has developed by reason of an action brought by sixteen plaintiffs wherein they claimed damages as the owners of land and the structures thereon, or as a tenant, by reason of the overflow of the Maquoketa River in 1947 and 1951. It is claimed the river bed had been raised as the result of the maintenance of a dam owned by the defendant power company at Manchester, Iowa with resulting over-flow of plaintiffs' properties at flood time. The defendant filed a motion to dismiss and for judgment on the pleadings which was sustained. From the judgment entered in favor of the defendant company the plaintiffs have appealed.

It was alleged in one of the divisions of the answer that a dam of the same height and location as the present one was constructed in or about 1867 pursuant to a decree of a district court of Iowa brought under a proceeding authorized by sections 1264-1277, inclusive, Revision of 1860. It was further therein alleged in that proceeding all persons to whom damages might have been awarded were made parties; that the lands of the present plaintiffs at the time of said proceeding were entirely worthless; the dam thereby authorized was continuously maintained at its original height and location until 1904, at which time it was reconstructed of concrete but of the same height and at the same location as the original dam and in accordance with the terms and conditions of the original decree and has been so maintained. The defendant further alleged it holds all the rights under the original decree and the license therein granted and owns the bed of the river upon which the dam is constructed as well as the land on either side thereof; and that during the times concerning which the plaintiffs make complaint said dam was maintained and operated under the license issued pursuant to the statutes of this state as originally enacted and further pursuant to a decree as therein provided. The decree here in question was before this court in the case of Hoag v. Denton, 20 Iowa 118.

In the sections of the Revision of 1860 heretofore referred to there is set forth the nature of the action that must be brought to make possible the erection of a dam. It is therein provided that damages may be assessed in favor of the owner of any land which will be overflowed or injuriously affected. It is also therein provided that on the payment to the proper parties of any damages decreed by the court the license provided for in the statute shall be granted to erect the desired dam. Although the case of Hoag v. Denton, supra, involved the structure here in controversy yet the issue then before this court was whether proper notices had been given in that proceeding. The case of Gammell v. Potter, 6 Iowa 548, involves the statutory procedure relative to the issuance of a license for the erection of a dam.

The defendant filed its answer in eight separate divisions. Division I denied the flooding of plaintiffs' property was the result of defendant's dam but admitted that by reason of it the water level of the river has been raised; that plaintiffs' properties are situated in the flood plain of said river and are, consequently, subject to overflow at times when there is a great deal of water in the drainage area of the river. Division II of the answer pleaded that a dam had been originally erected in 1867 and the facts mentioned in a prior paragraph are set forth. Division III pleaded acquiescence and estoppel. Division IV asserted the defendant had acquired prescriptive rights to flood plaintiffs' properties as a result of 80 years of reoccurring overflow. Division V alleged too, as a result of the erection of the dam more than 85 years ago and the flooding of plaintiffs' land more than 20 years prior to the bringing of the present action this action is barred by section 614.1, 1950 Code of Iowa, I.C.A. Division VI further pleaded that no rights of the plaintiffs were invaded by the flooding of their properties during the years 1947 or 1951 and any damages from the erection of the dam, if any, accrued to plaintiffs' predecessors in title and at the time of the construction of the dam and the first flooding of the properties now owned by the plaintiffs. Division VII asserted that the floods of 1947 and 1951 were of such a nature as to constitute an act of God and for which the defendant is not responsible. Division VIII made reference to certain portions of plaintiffs' petition and pleaded further that the several causes of action were barred by section 614.1(5), 1950 Code.

The plaintiff moved to strike portions, if not all, of the various divisions of the defendant's answer on the ground that they were insufficient to state a defense. The trial court sustained the striking of the latter portion of division I of the answer wherein it had been pleaded the plaintiffs or their predecessors in interest had made improvements on their land despite the fact they had full knowledge that their respective tracts were subject to overflow. There was also stricken from division I the allegation that the plaintiffs' properties are not up to the legal grade established by the ordinances of the city of Manchester and consequently plaintiffs cannot complain of the flow of surface water upon said properties. Division III was stricken in its entirety as well as division VIII. The motion to strike other portions of the answer was overruled.

No reply was filed to any of the pleaded affirmative defenses which were not stricken in the ruling on the motion to strike. Inasmuch as certain allegations of defendant's answer were not denied they are taken as admitted. Rule 102, R.C.P., 58 I.C.A. The defendant then made application for an adjudication of points of law and moved for judgment on the pleadings. Rule 222, R.C.P., 58 I.C.A. This motion was sustained and judgment was entered accordingly.

The trial court in its ruling on points of law held, (1) the construction, maintenance and operation of said dam was lawful, and no recovery can be had against defendant; (2) the dam being lawful, it cannot be a nuisance; (3) the dam being a lawful structure constructed pursuant to and in accordance with a license issued under statutory authority, the defendant had no duty to install flood gates; (4) if plaintiffs are claiming that the flooding of their lands was the direct, foreseeable and certain consequence of the damming of the river by defendant's predecessors, the design, purpose and function of said dam being to obstruct the flow of waters of the river, the plaintiffs' actions are barred by the statute of limitations. Or, if plaintiffs are claiming that the flooding of their lands by the dam was remote, consequential, unforeseeable and uncertain as to whether or when it would occur, plaintiffs' damage is damnum absque injuriam, the same resulting from the exercise of a right conferred by statute; (5) under the pleadings the defendant had no duty to remove the effect of the dam so that in times of flood it would not cause the waters of the river to run above its effective height or the level of the water maintained in the pond during normal river stages; (6) there is no relationship between the ownership, maintenance or operation of the dam and plaintiffs' injury.

It is the claim of the appellants, the plaintiffs, the court erred (1) in holding the fact the dam was constructed pursuant to a license exempted the owner of the dam from liability for overflow damage caused by its maintenance; (2) in holding that if damages were foreseeable at the time of the issuance of the license then the action was barred by limitation and that if they were not foreseeable the damages constituted damnum absque injuria.

I. The plaintiffs do not deny there was a license issued to the predecessor title holders of the dam here in question. They, however, contend that whether or not there was a license is wholly immaterial to any issue in this proceeding. We have not set forth in their entirety the statutes heretofore referred to but the action there provided for, as stated by the plaintiffs in their brief, was very similar to a condemnation proceeding.

It is the plaintiffs' contention the material section of the Revision of 1860, as far as the present action and appeal are concerned, was section 1271, Revision of 1860, which is as follows: 'Provided, also, that no inquest under this act, nor any judgment thereon, shall bar any action which could have been maintained if this act had not been enacted, unless the prosecution or action was actually foreseen, and estimated upon the inquest.'

The plaintiffs contend the defendant has pleaded no defenses under the statute unless it can...