Richardson v. City of Centerville

• Decision Date: 14 February 1908
• Citation: 114 N.W. 1071,137 Iowa 253
• Parties: E. J. RICHARDSON v. THE CITY OF CENTERVILLE, Appellant
• Court: Iowa Supreme Court

114 N.W. 1071

137 Iowa 253

E. J. RICHARDSON v. THE CITY OF CENTERVILLE, Appellant

Supreme Court of Iowa, Des Moines

February 14, 1908

Appeal from Appanoose District Court.--HON. FRANK W. EICHELBERGER Judge.

THE city of Centerville appeals from an award of damages for the appropriation of land for sewer outlet.-- Modified and affirmed.

Affirmed.

Wilson & Smith, for appellant.

C. A Baker and C. R. Porter, for appellee.

OPINION

SHERWIN, J.

In the fall of 1905 the city of Centerville condemned for a sewer outlet six acres of appellee's land. The sheriff's jury awarded the plaintiff $ 700, and an appeal was taken from said award to the district court, where the case was tried to a jury and the plaintiff was awarded $ 950 together with $ 150 attorney's fees. A judgment was entered for the plaintiff on the finding, and the city appeals.

The six acres taken for the outlet to this sewer was a part of a thirty-two-acre tract owned by the plaintiff. The sewage is discharged into what is known as the "Manson Branch," a natural water course, which the record shows is dry at the point of outlet during a considerable portion of each season. The court permitted this condition to be shown. It also permitted the plaintiff to show the number of users of the sewer at the time of the trial and the probable increase in the use thereof in the future. Evidence was also admitted showing the character of the sewer connections. The appellant contends that all of this testimony was improperly admitted, for the reason that the law presumes the proper construction of the sewer, and no damages can be predicated on its improper construction in proceedings of this kind. It is undoubtedly the well-established rule in this State that damages for the improper construction of public works cannot be recovered in condemnation proceedings; but in cases of this kind, as well as in those involving the condemnation of private property for railroads, etc., we have repeatedly held that the landowner may recover compensation for depreciation in the value of the remainder of his tract due to the proximity of the improvement for which the land was taken. This has long been the rule in relation to railroads operated in the usual and proper manner. Kucheman v. Railway Co., 46 Iowa 366; Small v. Railway Co., 50 Iowa 338; Haggard v. Independent School District, 113 Iowa 486, 85 N.W. 777. The rule was also approved in Bennett v. City of Marion, 106 Iowa 628, 76 N.W. 844. It is competent to show that sewers properly constructed may affect the atmosphere, particularly at their outlets, or otherwise interfere with the use and enjoyment of the premises, and these facts may be considered by the jury in determining the damages sustained by the landowner. There was no evidence admitted along this line which went beyond this rule, and hence there was no error in admitting the same.

The appellant offered to show that the plaintiff had theretofore been paid for a right of way of a railroad company over the same tract of land, but the evidence was not received. There was no error in the ruling. It could make no possible difference with his right to recover of the city the damages sustained by the location of the sewer. His measure of damages was the difference between the value...