Pisny v. Chi. & N. W. Ry. Co.
| Decision Date | 28 September 1928 |
| Docket Number | No. 38731.,38731. |
| Citation | 221 N.W. 205,207 Iowa 515 |
| Parties | PISNY ET AL. v. CHICAGO & N. W. RY. CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Linn County; F. O. Ellison, Judge.
Action at law for damages, and injunctive relief is also asked in the petition. From an order of court refusing the defendant a separate trial in equity of what the defendant company denominates equitable issues, said company appeals. Affirmed.Grimm, Wheeler, Elliott & Shuttleworth, of Cedar Rapids, and Davis, McLaughlin & Hise, of Des Moines, for appellant.
J. C. Leonard and Geo. C. Claassen, both of Cedar Rapids, for appellees.
The plaintiffs in their petition allege, in substance, that they are the owners of 82 1/2 acres of land in Bertram township, Linn county; that in said township there is a large creek, known as Indian creek, flowing from a northerly direction and emptying into Cedar river; that the defendant's track crosses said creek in said township; and that the roadbed of the defendant company is situated in a southwesterly and northeasterly direction, beginning with said Indian creek, a distance of several miles southwestward; that a portion of plaintiffs' land lies on each side of defendant's roadbed; that there is a natural drainage of several hundred acres of land northerly and westerly from said right of way in the direction of the same; that the waters up to the time of the wrongful acts of defendant complained of gathered along the northerly and westerly side of defendant's right of way between Indian creek and plaintiffs' land, which was situated on the northerly and westerly side of said right of way, and accumulated in a large pond; and that the surplus from said pond from time to time discharged itself through a water channel along the northerly and westerly side of defendant's right of way in a northeasterly direction to a point where it emptied into said Indian creek; that about the month of September, 1921, the defendant company wrongfully and negligently dug a passageway and erected a culvert under its track and through its roadbed from the northerly and westerly side of its right of way to the southerly and easterly side thereof at a point where the waters accumulated on the northerly and westerly side thereof in said pond; that said culvert and opening was so constructed as to discharge the waters collected in said pond from the drainage district and watershed which had theretofore been discharged along the northerly and westerly side of its right of way into said Indian creek, across and under its right of way to the southerly and easterly side thereof; that by reason of the erection of the culvert and maintenance of the opening, great volumes of water which accumulated in the pond aforesaid was diverted from its usual course and conducted through said culvert and opening and poured onto the land of plaintiffs, which adjoins the right of way on the southerly and easterly side thereof; that the plaintiffs suffered damage to crops for the years 1922 to 1925, inclusive, in the aggregate amount of $1,456.87; that unless the defendant is restrained from longer permitting said water so collected on the northerly and westerly side of its right of way to be conducted through said opening, or any other opening in said vicinity in its right of way, over to the southerly and westerly side thereof, the plaintiffs' land, and crops thereon, will from time to time intermittently and periodically be damaged; and the plaintiff prays for judgment against the defendant company in the sum of $1,456.87, with interest, and that an injunction be issued restraining and enjoining it from maintaining its said culvert and opening under its right of way, or any other opening through its right of way in the vicinity where the water is collected from the watershed on the northerly and westerly side of its right of way, or to in any way permit any of said water to be conducted to the southerly and easterly side of its right of way, and that it be restrained and prevented from further flooding the plaintiffs' said land.
The defendant company answered the aforesaid petition by general and specific denials.
Thereafter the defendant company filed a motion alleging therein that plaintiffs' petition states an action at law for damages, and also an action in equity for injunction, and asking the court for an order requiring separate trial to the court of the so-called equitable issues. This motion was by the court overruled, and from this ruling the defendant company appeals.
The plaintiffs' petition is denominated “at law.” They ask no general equitable relief; they merely ask for damages and injunctive relief as aforesaid.
[1] While it is in no way raised by the respective parties, the question naturally arises whether the order of the trial court in overruling defendant's motion to transfer the so-called equitable issues to the equity side of the calendar is such an order as that an appeal may properly be taken therefrom. We have so held. See Price v. Ætna Insurance Co., 80 Iowa, 408, 45 N. W. 1053, where we held that a ruling of the trial court, sustaining or overruling a motion to have certain issues in an action at law transferred for trial in equity on the ground that they are equitable issues is an order affecting the substantial rights of the parties from which an appeal will lie. Also see In re B. C. Bradley, 108 Iowa, 476, 79 N. W. 280, and In re Estate of Watters, 201 Iowa, 884, 208 N. W. 281.
[2][3] It is the defendant's contention that the asking by the plaintiff in his petition of injunctive relief raises an equitable issue, and it relies for alleged error on the part of the trial court in overruling the aforesaid motion upon section 10947 of the Code, which provides:
“ Equitable Issues.--Where the action has been properly commenced by ordinary proceedings, either party shall have the right, by motion, to have any issue heretofore exclusively cognizable in equity tried in the manner hereinafter prescribed in cases of equitable proceedings; and if all the issues were such, though none were exclusively so, the defendant shall be entitled to have them all tried as in cases of equitable proceedings.”
The plaintiffs contend that the provisions of the aforesaid section of the Code are not applicable to the instant case. Their contention is that the case is governed by section 12513 and 12514 of the Code, which are as follows:
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