Scott v. Price Bros. Co.
| Decision Date | 17 December 1927 |
| Docket Number | 37114 |
| Citation | 217 N.W. 75,207 Iowa 191 |
| Parties | E. E. SCOTT, Appellee, v. PRICE BROS. COMPANY et al., Appellees; IOWA ELECTRIC COMPANY, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED DECEMBER 14, 1928.
Appeal from Henry District Court.--JAMES D. SMYTH, Judge.
Suit in equity to enjoin the building of a dam across the Skunk River. Upon hearing, a conditional decree of injunction was entered. The defendant Iowa Electric Company has appealed.
Affirmed.
B. I Salinger and Galer & Galer, for appellant.
F. S Finley and McCoid, McCoid & McCoid, for appellees.
OPINION
I.
The pleadings are somewhat obscure. On its face, the petition does not disclose concretely what the trouble is about. Some phases of the case have hitherto been presented to us under an application for a restraining order suspending the operation of the decree, pending the appeal. We granted such application, upon condition that a bond for $ 25,000 be filed, for the protection of the appellee.
The background (as well as the foreground) is a condemnation proceeding initiated by the appealing defendant, and afterwards dismissed. The appealing defendant is a public service corporation, organized for the purpose of manufacturing and distributing electric light and power. The other defendants were contractors and servants of the appealing defendant, who were engaged as such in carrying out the enterprise of the appealing defendant. The Iowa Electric Company is the sole defendant in interest before us on this appeal, and will be referred to in our discussion as "the defendant."
Very many years ago, a dam was constructed in Henry County across the Skunk River, and the same has been maintained continuously since its construction. It is referred to in the record as the "Wilson" dam, and as the "old" dam. This dam and the rights and privileges appurtenant thereto were acquired by the defendant, or its corporate predecessor, more than fifteen years ago. Up to that time, the dam had maintained a water level of seven feet. By certain proceedings had in 1911 to 1913, the defendant established its right to maintain a water level of nine feet. In 1924, the defendant obtained from the executive council permission to rebuild its dam to a higher level, conditioned upon making compensation to the upper proprietors of land who would be affected by the higher level. The plaintiff is one of such upper proprietors, and is the owner of two or three farms so situated, as alleged, that each would be flooded to a substantial extent by the higher level proposed by the defendant.
The defendant initiated a condemnation proceeding, wherein it named the plaintiff and others as upper proprietors whose land would be affected by the improvement. The sheriff's jury awarded damages to the plaintiff. The defendant neither paid the damages thus awarded, nor did it deposit the amount thereof with the sheriff. It did prosecute an appeal from such award to the district court. In the district court, a controversy arose whether the plaintiff was entitled to claim damages for other acreage of his land than that specifically described by the defendant in its application for a sheriff's jury. That controversy, as such, is not before us on this appeal. Some time after the initiation of the condemnation proceedings, the defendant applied to the executive council for the further permission to build a dam at a location 300 feet downstream from the "old" dam. This permission was granted, subject to the same conditions as before. Thereupon, the defendant dismissed the pending condemnation proceeding, and in effect refused to initiate another. In the meantime, it had commenced work upon the construction of the new dam, and had incurred large expenditure thereon. Such was the status when the decree appealed from was entered in the district court. This decree found that the proposed dam in course of construction by the defendant, as indicated by the plans and specifications pursuant to which the construction was proceeding, would result in damage to the plaintiff, and injunction was ordered against its erection or maintenance. The order of injunction, however, was made provisional, in that the defendant was permitted to avoid the same by paying into the hands of the sheriff the amount of damages previously awarded by the sheriff's jury to this plaintiff, and by initiating further condemnation proceedings involving other lands of the plaintiff's, which had been excluded in the first proceeding. Such is the decree from which this appeal was taken.
At the time of the trial, the dam proper had not been built to a higher elevation than the "old" dam. But the plan of construction was such that the additional elevation provided for in the plans and specifications could be readily superimposed. Moreover, a power house had been constructed, which extended 110 feet into the bed of the stream, and operated as a dam, to that extent, to an indefinite height above that of the "old" dam. All the abutments which were to support the floodgates were erected to a height much in excess of the "old" dam. The construction actually made, including the power house and the abutments and piers, reduced the flowage space to 60 feet; whereas the flowage of the "old" dam was more than 300 feet. This restriction of itself tends, in time of flood, to raise the water level higher than the lower level of the dam itself.
The application for a stay order, which we granted, was pressed upon us with much force, upon the ground that the defendant had no intention to build its new dam to any higher level than that of the "old" dam, and that all its construction work was consistent with this intention on its part.
Upon the record now before us, no such declaration of intent was made in the court below, nor is any such now made in this court. Apart from a question of jurisdiction, to be considered herein later, the only defense presented for our consideration is predicated upon the following portion of the answer:
The proposition is set forth in appellant's brief as follows:
Upon the merits of the appeal, therefore, the sole question presented for our consideration is whether, upon the facts pleaded and found, the plaintiff was entitled to the remedy of injunction, in the absence of an allegation of the insolvency of the defendant.
In the consideration of this question, we must assume, as the lower court found, that the construction of the dam by the defendant is for the purpose of raising the water level substantially above that caused by the "old" dam, and that such will be the result, not only of its finished construction, but of its present construction, in times of flood.
The argument for appellant is that the plaintiff has a "plain, speedy, and adequate remedy" at law for damages, and that, therefore, of necessity he is entitled to no relief in equity by injunction. The distinction is urged as between an accomplished and continuing trespass, on the one hand, and a mere threatened trespass, on the other. It is urged that, though injunction will lie in the first instance, it will not do so in the second. This broad proposition upon which the appellant predicates its argument is subject to many qualifications.
Whether the right to prosecute an action for damages in a jurisdiction perhaps remote is a "plain, speedy, and adequate remedy" to a landowner whose property is seized or about to be seized under the power of eminent domain is a question which has not hitherto been specifically raised in this court. Sufficient, perhaps, at this point to say that such right has never heretofore been so regarded in this state. The Constitution expressly provides:
"Private property shall not be taken for public use without just compensation first being made, or secured to be made to the owner thereof, * * *" Article 1, Section 18.
Pursuant to the foregoing requirement, the legislature has provided the method of condemnation proceedings. Under these proceedings, the public corporation is required to pay the amount of the award of the sheriff's jury before it enters into possession of the land in the exercise of the power of eminent domain. Until such payment is made, the owner is not required to submit to any invasion of his land. The acts of the appellant, as described by this record, amount to an evasion on its part of the obligations imposed upon its by the provisions of Constitution and statute as a condition precedent to its exercise of the power of eminent domain. Under our previous decisions, we have always protected the landowner against evasion of this procedure. This constitutional and statutory requirement is equally obligatory upon the corporation, whether it be solvent or insolvent. It cannot be said that the injunction in this case is directed against a mere threat of trespass, as argued by appellant. On the contrary, it is directed to the...
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