Noe v. Chi., B. & Q. Ry. Co.
| Citation | 41 N.W. 42,76 Iowa 360 |
| Court | Iowa Supreme Court |
| Decision Date | 21 December 1888 |
| Parties | NOE v. CHICAGO, B. & Q. RY. CO. |
OPINION TEXT STARTS HERE
Appeal from district court, Marion county; O. B. AYRES, Judge.
Action by J. B. Noe against the Chicago, Burlington & Quincy Railway Company, to recover damages to plaintiff's land by reason of backwater and overflow caused by embankments and insufficient passage-way for the water of the South river, and by making certain changes in the channel of said stream. Verdict and judgment for the plaintiff. Defendant appeals.Stone & Gamble and T. B. Perry, for appellant.
L. O. Blanchard and Hays Bros., for appellee.
In the year 1879 the defendant constructed its railroad from Albia to Des Moines via Knoxville. It was necessary to build the road across South river, a considerable stream, which flows from the south in a northward direction, and empties into the Des Moines river at a point about three-fourths of a mile from the railroad. South river bottom is about two miles wide, and when the road was built a bridge was erected over South river, and trestle-work was constructed for some distance on each side of the main channel of the stream. There were two side channels to the stream, through which water flowed in times of freshets. The defendant erected pile bridges or structures over these side channels. There does not appear to have been any complaint made by land-owners as to the want of sufficient openings in the railroad for the passage of the water until the year 1883. In that year the defendant closed up the trestle-work over the side channels by solid earth embankments, riprapped with stone. In the same year the defendant made a cut-off, or new channel, for the river, by which the main channel was shortened about one mile. This cut-off was on the south side of the railroad, and the object in making it was to shorten the line of the stream. The plaintiff's land is on the south side of and up the stream from the railroad. It is claimed by plaintiff that by making the two embankments and the cut-off his lands have been and now are liable to a much greater overflow than they were before, and that he is thereby damaged. The evidence introduced upon the trial consisted of the testimony of two civil engineers, one in behalf of each party, and each of the parties examined as witnesses quite a number of persons who had resided for years in the vicinity of the river, and who stated the effects which they had observed as to the backwater and overflow made by the acts complained of by plaintiff. An examination of all the evidence leaves no doubt that the jury was warranted in finding that the embankments and cut-off complained of increased the overflow and backwater on the plaintiff's land. The verdict cannot, therefore, be disturbed upon the ground that it is not supported by the evidence.
1. A great many exceptions were taken by the defendant to the rulings of the court upon the admission and exclusion of evidence. One class of evidence, which was objected to, and which is now claimed to have been incompetent, is the estimate made by farmers and others residing in the vicinity as to the quantity of water which flowed through the side channels and the main channel in times...
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Thompson v. Ill. Cent. R. Co., 31971.
...as were the instructions offered and those given. As will presently be seen, that is the state of the record here. In Noe v. Railroad, 76 Iowa, 362, 41 N. W. 42, the evidence was addressed to the theory of permanent damages to the land itself, and that fact is specially noted. It is ruled i......
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