Packard v. Voltz

• Decision Date: 05 April 1895
• Citation: 94 Iowa 277,62 N.W. 757
• Parties: PACKARD v. VOLTZ ET AL.
• Court: Iowa Supreme Court

94 Iowa 277

62 N.W. 757

PACKARD

v.VOLTZ ET AL.

Supreme Court of Iowa.

April 5, 1895.

Appeal from district court, Butler county; P. W. Burr, Judge.

It is, in substance, shown by the petition that the plaintiff owns land in sections 35 and 36 in one of the townships of the defendant county; that on the line between said sections is a public highway; that the natural drainage of the land in section 35 is across the line of said highway, the line of which drainage is now, and for a long time past has been, defined by a natural depression, and by ditches excavated by plaintiff; that prior to the year 1892 there was maintained upon said highway a culvert or bridge about 12 feet long and about 4 feet high, by means of which the said land in section 36 was drained, but which said bridge or culvert was not sufficient to carry off the water readily without causing an overflow of the lands of plaintiff; and that said highway has been improved by the erection of an embankment across said bottom land, which acts as a dam, confining the escape of the water from the land of the plaintiff on the west side of said road and embankment to the bridge and a smaller culvert at a different point. It is also shown that the defendant Ray is a member of the board of supervisors of the defendant county, and that the said board authorized and directed the defendants Ray and Voltz to take out the bridge from the embankment, and substitute for it tiling, of a capacity less than the bridge, to carry off the water, and that the tiling was so substituted for the bridge; that in directing and executing the work Ray and Voltz “acted with wanton disregard to the rights of the plaintiff, and with a malicious intent thereby to injure his property, and cause him pecuniary loss and damage”; that said drainage was not planned or executed with reasonable skill, and the water way was entirely inadequate to “carry off the water with the same facility and in the same quantity.” It further appears that the change has created a nuisance to plaintiff, and that so long as it remains his lands will be subject to overflow and damage. He asks judgment in the sum of $500, and that the nuisance be abated. Each of the defendants presented a demurrer to the petition, which the court sustained, and the plaintiff appealed. Affirmed.Hemenway & Grundy, for appellant.

Courtright & Arbuckle, for appellees.

GRANGER, J.

1. The grounds of the demurrer are several, and it will be unnecessary to specify them, as we shall dispose of the points on the line indicated in argument. We will first notice the question as to the liability of the county. By section 1, c. 200, Acts 20th Gen. Assem., it is provided: “The board of supervisors of each county may, at the time of levying taxes for other purposes, levy a tax of not more than one mill on the dollar of the assessed value of the taxable property in their county, which tax shall be collected at the same time and in the same manner as other taxes are collected and shall be known as the county road fund, and shall be paid out only on the order of the board of supervisors for work done on the highways of the county in such places as the board shall determine.” The work done on the highway was in pursuance of this provision, and we are to determine whether or not, in the doing of such work, the county is liable for the negligence of its agents or employés. We think the holdings of this court, upon analogous facts, are decisive of the question. But for the rule announced in Wilson v. Jefferson Co., 13 Iowa, 181, and the cases adhering to it, the one now contended for would have no authoritative support in this state. The rule of that case has been doubted, and the doubt, on common-law authority, has recognition in the holding of this court. In Kincaid v. Hardin Co., 53 Iowa, 430, 5 N. W. 589, speaking of that case, and of its standing “almost, if not quite, alone,” support is given to the holding because of its existence for so long a time as to “have the implied sanction of the lawmaking power and the people of the state”; and it is there said that “we have no disposition to carry the doctrine further than to sustain the decisions of the court.” The case of Green v. Harrison Co., 61 Iowa, 311, 16 N. W. 136, was to recover damages because of the negligent construction of a ditch by the county, resulting in damage to the plaintiff. The case distinguishes the Kincaid Case from the line of bridge cases, and follows it. The...