Nalon v. City

• Decision Date: 26 September 1933
• Docket Number: No. 41930.,41930.
• Parties: NALON v. SIOUX CITY.
• Court: Iowa Supreme Court

216 Iowa 1041

250 N.W. 166

NALON

v.SIOUX CITY.

No. 41930.

Supreme Court of Iowa.

Sept. 26, 1933.

Appeal from District Court, Woodbury County; F. H. Rice, Judge.

Action at law for damages to plaintiff's real property alleged to have been occasioned by the construction of a new channel for a creek adjacent thereto. The motion of the defendant for a directed verdict was overruled by the trial court, and defendant appealed therefrom.

Affirmed.H. C. Harper, A. O. Jepson, and Jesse E. Marshall, all of Sioux City, for appellant.

Griffin & Griffin, of Sioux City, for appellee.

DONEGAN, Justice.

The plaintiff, Lillian Nalon, is the owner of a lot having a frontage of 30 feet on the north side of West Thirteenth street, in the city of Sioux City, Iowa, and extending northward about 108 feet in depth. West Thirteenth street is a paved street running east and west, and, prior to the digging of the ditch involved in this action, extended some distance west of plaintiff's property. Perry creek, in the vicinity of plaintiff's lot, ran in a generally southeasterly direction. The natural channel of the creek, at its nearest point of plaintiff's property, was approximately 150 to 200 feet west of the rear or north end of plaintiff's lot. At this point nearest the plaintiff's lot the natural channel of the creek bent westward, thence southward, thence eastward, forming what is known as a horseshoe bend. The city of Sioux City undertook to straighten the channel of this creek and cut a new channel from the point where the horseshoe bend began west of the plaintiff's lot, thence in a southeasterly direction to where this new channel met the natural channel at a point south and east of plaintiff's lot. Plaintiff's lot is located in a residence section of Sioux City, and on this lot there was a two-story six-room residence and a double garage. The residence stood near the southwest corner of her lot; the west side of such residence being about 2 feet from the west line of the lot, and the front of the residence about 2 or 3 feet from the south line of the lot.

In straightening out Perry creek, the defendant city dug a ditch about 20 feet wide and 20 feet deep. This ditch runs in a southeasterly direction, and near the southwest corner of plaintiff's lot the top of the ditch is 5 feet from the southwest corner of plaintiff's house. The ditch extends diagonally southeast across West Thirteenth street in front of plaintiff's property, and at the south line of the street the east edge of the ditch is approximately south of the east line of plaintiff's lot.

In her petition plaintiff claimed damages, because after heavy rainfalls the creek deposits large quantities of débris and filth along its banks; because, as constructed, the change in the channel deprived plaintiff's lot of its lateral support; because access to the street is rendered more difficult; and because of removal of a shade tree which was immediately in front of plaintiff's house.

Defendant admitted constructing the new channel, denied generally all other allegations of the petition which were not admitted, and pleaded other special defenses. Trial was had to a jury, and at the close of plaintiff's evidence defendant moved the court to direct the jury to return a verdict in favor of the defendant. This motion for a directed verdict was overruled. By agreement of parties, the jury was discharged, and the cause submitted to the court on the question of damages; it being agreed that the court might enter a judgment with all the force and effect of a finding of the jury. Thereupon the court discharged the jury and entered judgment in favor of the plaintiff for $1,250 and costs. From this ruling and the judgment of the court the defendant appeals.

The only error relied upon by the appellant for reversal is as follows: “1. The sole proposition presented on this appeal is that the Court erred in overruling defendant's motion for a directed verdict and should have held as a matter of law that there is no right of action for an incidental injury to the value of property caused by a proper work of public improvement where there is no direct taking of plaintiff's property or trespass thereon.”

Appellant's brief and argument is devoted to this one proposition, that there was no taking of plaintiff's property within the meaning of the constitutional provision against taking property without compensation, and that any and all damages claimed by appellee resulted indirectly from the construction of the ditch adjacent to the appellee's property and are incidental and consequential. Article 1, § 18, of the Constitution of the state of Iowa, provides as follows: “Private property shall not be taken for public use without just compensation first being made, or secured to be made to the owner thereof.” Appellant cites authorities in support of its contention that there can be no taking of private property within the contemplation of this provision of the Constitution unless there is a physical appropriation of the property itself, and that, where the property is not physically taken, any damages resulting to such property because of a public improvement are indirect and consequential and, in the absence of statutory provision authorizing payment thereof, cannot be collected against a city when acting in its...