Oak Leaf Country Club, Inc. v. Wilson, 2-58405

• Decision Date: 21 September 1977
• Docket Number: No. 2-58405,2-58405
• Citation: 257 N.W.2d 739
• Parties: OAK LEAF COUNTRY CLUB, INC., and Reinbeck Farms, Inc., Appellants, v. Harold K. WILSON, Appellee.
• Court: Iowa Supreme Court

Page 739

257 N.W.2d 739

OAK LEAF COUNTRY CLUB, INC., and Reinbeck Farms, Inc., Appellants, v. Harold K. WILSON, Appellee.

No. 2-58405.

Supreme Court of Iowa.

Sept. 21, 1977.

Rickert & Thompson, Reinbeck, for appellants.

John B. Grier and Michael J. Moon, of Cartwright, Druker & Rigden, Marshalltown, for appellee.

Heard by MOORE, C. J., and MASON, REES, UHLENHOPP, and HARRIS, JJ.

MOORE, Chief Justice.

Plaintiffs appeal trial court judgment entered on ruling sustaining defendant's motion for directed verdict made at close of plaintiffs' evidence in water damage action arising subsequent to straightening of meandering stream. We reverse and remand.

The factual background of this appeal is as follows. Black Hawk Creek is a meandering stream which flows through defendant's property and then passes eastwardly through both plaintiff Oak Leaf Country Club's and plaintiff Reinbeck Farms' properties in Grundy County, Iowa. Because of the topography of the area and heavy seasonal rains the properties are flooded each spring causing some sand and silt buildup as well as erosion damage.

In May, 1972, defendant farmer Wilson initiated a channelization project in order to reclaim several acres of farmland which were made unusable by the flow of the stream. Subsequent to completing the channelization he received after-the-fact approval from the Iowa Natural Resources Council. The effect of defendant's project, which was completed entirely on his own property, was to eliminate bends in the creek, thus reclaiming 20 acres for crop land. After the straightening, although there was some drainage from the old bed into the creek, there was no noticeable increase in the amount of water flowing in the creek nor diversion where the channel entered plaintiffs' properties.

The next year when the floods came on again plaintiffs noticed the velocity of the water coursing through Black Hawk Creek was more intense than in prior years; this was also true in 1974. They noted the aftermath of the flooding in both years significantly increased sand and silt deposits, crop damage and extensive erosion of creek banks. Consequently in April, 1974, they filed an action at law alleging defendant's straightening of the stream altered its natural course and accelerated the velocity of the current which caused increased scouring and abrasion to creek banks as well as increased flooding thereby damaging plaintiffs through deposits of sand, silt and extensive erosion. Oak Leaf prayed for damages in the amount of $95,000; Reinbeck Farms prayed for $10,000. Defendant generally denied these allegations in his answer and also raised as an affirmative defense plaintiffs' failure to mitigate damages by their failure to stabilize the banks of the creek along their respective properties. At the close of their case in chief, plaintiffs amended their petition to alternatively allege negligence under a res ipsa loquitur theory.

The evidence developed at trial showed that after the channelization project was completed both plaintiffs had considerably more extensive flood damage than at any time previously. Donald Dirks, Oak Leaf's vice president, testified that before the project "perhaps six inches to a foot of creek bank would slough off after a big flood;" afterwards he estimated nearly six feet had "caved in." Furthermore, he now observed "huge sand drifts" as high as two feet at numerous locations on the golf course. On cross-examination, he conceded nothing had been done to stabilize the creek banks since the spring of 1973. He concluded that as a result of the increased flood damage the market value of the golf course dropped substantially.

Delbert Clark, Reinbeck's farm manager, testified that in both 1973 and 1974 the flood water came across the corn field with such force that 10-12 acres were completely destroyed as "the corn was all smashed down and covered with mud." Such damage had not resulted from floods prior to 1973. Reinbeck was not only unable to replant the damaged crops for those years but also was unable to rent any additional land to mitigate its losses. He expressed the opinion as a result of the channelization and resultant flood loss the market value of the crop land had been reduced.

Both Dirks and Clark stated they observed an increased velocity current in the Black Hawk Creek after the channelization during the 1973 and 1974 floods. Thomas Campbell, general manager for Reinbeck, testified this was in contrast with floods in prior years when the water "overflowed or spilled from the creek" and spread out over the land "like a lake." Al Austin, an I.S.U. professor of civil engineering whose specialty was hydraulics, testified on plaintiffs behalf and verified their observations stating the velocity of the stream was increased from 3.45 feet per second to 3.73 feet per second. He opined erosion of the creek bank was accelerated by the channelization project. However, on cross-examination he conceded he was unable to say whether any of the damages would have occurred if there had been no change in the channel.

At the close of plaintiffs' case, defendant made a multifaceted motion for directed verdict on the grounds plaintiffs had failed to introduce sufficient evidence on liability, causation and damages. Trial court sustained the motion and in doing so, stated:

"I sustain the motion on each and every count which is the sustain the motion on Count I in which I feel there is insufficient evidence, too small to submit this to the Jury. On Count II, on the proximate cause question, and Count III, the damage question."

From judgment for defendant, plaintiffs appealed.

I. We first consider plaintiffs' contention the trial court erred by generally sustaining defendant's motion for directed verdict in contravention of the requirement of rule 118, Rules of Civil Procedure.

Under rule 118 trial courts are required to make specific rulings on each and every ground of a multifaceted motion. The purpose of the rule is to enable the parties to know which grounds are sustained by a court and thus limit issues on appeal. Giltner v. Stark, Iowa, 252 N.W.2d 743, 745. We have stated that cases involving violation of rule 118 will ordinarily be reversed and remanded for specific rulings. Brekken v. County Bd. of Rev. of Story County, Iowa, 223 N.W.2d 246, 247; Ruby v. Easton, Iowa, 207 N.W.2d 10, 14, 15.

We think the court minimally complied with rule 118 although it might well have elaborated upon its reasons. Dudley v. William Penn College, Iowa, 219 N.W.2d 484, 487. Reversal and remand for specific rulings here would cause unnecessary delay and expense. We therefore will determine the merits of trial court's ruling.

II. At the close of their case, plaintiffs amended their petition to add another division alleging negligence under the theory of res ipsa loquitur. Defendant moved for a directed verdict on the issue of negligence and trial court sustained the ruling.

Recently in Fosselman v. Waterloo Comm. Sch. Dist., Etc., Iowa, 229 N.W.2d 280, 283, we stated:

"Res ipsa loquitur is a rule of evidence which, when applied, permits but does not compel an inference that defendant was negligent. Clippinger v. Becker, Iowa, 220 N.W.2d 879, 881. Under the doctrine the happening of an injury permits an inference of negligence where plaintiff produces substantial evidence that (1) the injury is caused by an agency or instrumentality under the exclusive control and management of defendant and (2) the occurrence is such as in the ordinary course of things would not happen if reasonable care had been used. Clippinger v. Becker, supra; Palleson v. Jewell Cooperative Elevator, Iowa, 219 N.W.2d 8, 13; Fischer, Inc. v. Standard Brands, Inc., Iowa, 204 N.W.2d 579, 583. Unless both elements are present the doctrine does not apply. Wiles v. Myerly, Iowa, 210 N.W.2d 619, 625, and citations."

The real test of control is whether defendant is in control at the time of the negligent act which, either at that time, or later, produced the accident. Breeding v. Reed, 253 Iowa 129, 137, 110 N.W.2d 552, 557, and citations.

Applying these principles to the claimed floodwater damages we do not believe the doctrine of res ipsa loquitur is applicable to this type of case. We believe our statements in Eaves v. City of Ottumwa, 240 Iowa 956, 970, 971, 38 N.W.2d 761, 769, 11 A.L.R.2d 1164, 1177, are still valid:

"Here the physical cause of plaintiff's damage was overflow from the race. Defendant's answer admits the race, hydroelectric plant and gates were under its exclusive control and management although it denies the res ipsa doctrine is applicable. Although defendant was in exclusive control of the race and gates, it cannot fairly be said the floodwater flowing into the race from the river was exclusively under defendant's control and management. Such floodwater is one of the instrumentalities that caused the damage.

"Our decisions involving the res ipsa rule have uniformly stressed the necessity of defendant's complete and exclusive control of the instrumentalities that cause the injury. Pierce v. Gruben, 237 Iowa 329, 347, 21 N.W.2d 881, 889, 19 N.C.C.A.,N.S., 73; Whetstine v. Moravec, 228 Iowa 352, 368, 291 N.W. 425; Highland Golf Club v. Sinclair Refining Co., supra, Iowa, 59 F.Supp. 911, 915.

"Further, we think it may not fairly be said that in the ordinary course of things or, as frequently stated, according to common experience, water does not overflow the banks of such a race where those in control of the race exercise reasonable care. Evidence which may show negligence in this particular case is not to be considered in determining this question.

"Certainly it is common experience for natural watercourses to overflow their banks in time of heavy rains without lack of care by any human agency. Flooding of lowlands along swollen streams in wet seasons is common. It appears here the Des Moines River overflowed its banks and flooded other portions of Ottumwa...