La Plant v. City of Marshalltown

• Decision Date: 10 May 1907
• Citation: 111 N.W. 816,134 Iowa 261
• Parties: LA PLANT v. CITY OF MARSHALLTOWN ET AL.
• Court: Iowa Supreme Court

134 Iowa 261

111 N.W. 816

LA PLANT

v.CITY OF MARSHALLTOWN ET AL.

Supreme Court of Iowa.

May 10, 1907.

Appeal from District Court, Marshall County; Obed Caswell, Judge.

This is an action to restrain defendant from proceeding with an ad quod damnum action wherein defendant city was seeking to condemn certain lands belonging to plaintiff for the protection of its water supply. A temporary writ of injunction was issued as prayed. Thereafter defendants answered, and also filed a motion to dissolve the temporary writ of injunction. This motion was submitted to the court and sustained, and plaintiff appeals. Affirmed.Boardman & Lawrence, for appellant.

B. L. Burritt and C. H. Van Law, for appellees.

DEEMER, J.

Plaintiff is the owner of a tract of land through which runs the Iowa river which is a nonnavigable stream. Upon this land and across the stream is a dam which has been maintained for many years and was originally used for running a grist mill. The city of Marshalltown located its waterworks plant near this dam, and it purchased a lot from the then owner of the dam in order that it might avail itself of the water supply created thereby, and in pursuance thereof erected its pumping station, dug its filter galleries, and constructed other equipment for the purpose of supplying the city with water. In February of the year 1905 plaintiff became the owner of this property by purchase for the purpose of destroying the dam, claiming that the water obstructed by it damages lands owned by him and others further up the stream. When plaintiff's purpose became known, defendant city brought action to restrain him from destroying or removing the dam. A similar action was brought by the Marshall Ice Company. See Marshall Ice Co. v. Laplant (decided at present sitting) 111 N. W. ___. In the month of October, 1905, the defendant city for the avowed purpose of preserving, continuing, protecting, and maintaining its source of water supply, instituted condemnation proceedings against plaintiff for the purpose of securing a right to maintain the dam and protect its source of water supply. A sheriff's jury was selected, and notice had been given plaintiff fixing the time and place where it would meet to assess and fix the damages to which plaintiff was entitled. Thereupon plaintiff commenced this action to restrain the city and sheriff's jury from acting further in the premises. A temporary writ was issued without notice, and at the convening of the district court for its next term defendants answered and also filed a motion to dissolve the temporary writ of injunction. Before the motion to dissolve was submitted plaintiff filed objections to the judge before whom it was pending, upon the ground that he was interested in the proceedings, and also a motion to postpone the hearing for two weeks on account of his (plaintiff's) absence. Both objections and motion were overruled and exception taken. The motion to dissolve was then submitted and sustained, and upon application to one of the judges of this court a restraining order was issued in support of our appellate jurisdiction, which is still in force.

As grounds for the issuance of the temporary writ of injunction, plaintiff alleged that the condemnation proceedings were a sham and a pretense; that the dam was not necessary to the operation of the city waterworks system; that the condemnation proceedings were instituted by the water committee of the city council without authority from the city; that this committee was acting for and on behalf of certain private individuals, and that it was not seeking to condemn the land for public uses; that the use of the dam for water-power purposes had been abandoned; and that plaintiff for the protection of his lands further up the river had the right to destroy the dam. Defendant denied all allegations of the petition, save that it had instituted the condemnation proceedings for the purpose of maintaining a reservoir and source of water supply. Both petition and answer were duly verified.

Before going to the main point at issue, we shall dispose of the claim that the judge who dissolved the writ was disqualified. The judge was a citizen and a taxpayer of the city of Marshalltown, and it is claimed that on this account he was not qualified to act upon the motion. It is quite uniformly held that a judge is not disqualified because he may be a taxpayer of a public corporation which had a suit pending before him; nor is he disqualified because of being indirectly interested in the city's having a sufficient water supply. Of the many cases which might be cited upon these propositions we refer to the following: Commonwealth v. Emery, 11 Cush. (Mass.) 406; Ex parte Guerrero, 10 Pac. 261, 69 Cal. 88; Justices v. Fennemore, 1 N. J. Law, 293; Foreman v. Marianna, 43 Ark. 324;City v. Peacock, 33 S. W. 220, 89 Tex. 58;Los Angeles v. Pomeroy, 65 Pac. 1049, 133 Cal. 529;In re Ryers, 72 N. Y. 1, 28 Am. Rep. 88. No point is made in argument upon the denial of the motion to postpone the hearing; hence, we give that matter no further consideration.

2. Appellant's main contention is that the injunction should not have been dissolved for the reason, first, that the condemnation proceedings were a sham and a pretense, in that they were instituted for the benefit of private persons, to wit, the Marshall Ice Company. This is squarely denied in the answer, which was made under oath, and it is distinctly stated that they were commenced to sustain and maintain the city's source of water supply. It is doubtless true that, if there be a fraudulent pretense that land is to be condemned for a lawful purpose when...