Nalon v. City, 41930.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtDONEGAN
Citation250 N.W. 166,216 Iowa 1041
Docket NumberNo. 41930.,41930.
Decision Date26 September 1933

216 Iowa 1041
250 N.W. 166


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.


[250 N.W. 166]

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

Griffin & Griffin, of Sioux City, for appellee.

[250 N.W. 167]

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...

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11 cases
  • Liddick v. City of Council Bluffs, No. 45817.
    • United States
    • United States State Supreme Court of Iowa
    • August 11, 1942 or seizing it. The case which the appellants rely upon as decisive of this division of the opinion is Nalon v. City of Sioux City, 216 Iowa 1041, 250 N.W. 166, 167. The plaintiff [5 N.W.2d 378]owned a residence lot facing south on West 13th Street. Back and to the west of the lot, Perry ......
  • Braden v. Board of Sup'rs of Pottawattamie County, No. 52881
    • United States
    • United States State Supreme Court of Iowa
    • March 5, 1968
    ...240 Iowa 919, 924--925, 38 N.W.2d 605; Prymek v. Washington County, 229 Iowa 1249, 1252--1254, 296 N.W. 467; Nalon v. City of Sioux City, 216 Iowa 1041, 1043--1046, 250 N.W. 166; Hubbell v. City of Des Moines, 173 Iowa 55, 60--64, 154 N.W. 337; and Ridgway v. City of Osceola, 139 Iowa 590, ......
  • Iowa State Highway Commission v. Smith, No. 49186
    • United States
    • United States State Supreme Court of Iowa
    • May 7, 1957
    ...or material impairment or interference therewith by the public authorities is a taking of the property. Nalon v. City of Sioux City, 216 Iowa 1041, 1044, 250 N.W. 166; Liddick v. City of Council Bluffs, 232 Iowa 197, 232-233, 5 N.W.2d 361, 379; Anderlik v. Iowa State Highway Comm., 240 Iowa......
  • Warren v. Iowa State Highway Commission, No. 49577
    • United States
    • United States State Supreme Court of Iowa
    • November 18, 1958 his land across a strip in which he had an easement for travel was cut off by the vacation of a road. Nalon v. City of Sioux City, 216 Iowa 1041, 250 N.W. 166, says that a property owner whose substantial access to her lot from [250 Iowa 483] a public street is substantially interfered w......
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