Scott v. Sioux City, 50931

• Decision Date: 17 September 1963
• Docket Number: No. 50931,50931
• Citation: 255 Iowa 650,123 N.W.2d 402
• Parties: David SCOTT, Appellant, v. SIOUX CITY, Iowa, a Municipal Corporation, Appellee.
• Court: Iowa Supreme Court

Page 402

123 N.W.2d 402

255 Iowa 650

David SCOTT, Appellant, v. SIOUX CITY, Iowa, a Municipal Corporation, Appellee.

No. 50931.

Supreme Court of Iowa.

Sept. 17, 1963.

Edward E. Baron and Geo. F. Davis, Sioux City, for appellant.

Neil R. McCluhan, Sioux City, for appellee.

HAYS, Justice.

Plaintiff owns a property located at the northeast intersection of Fifth and Jackson Streets in Sioux City, Iowa, and on which is located a building divided into four business or store rooms, all of which face on Fifth Street. Fifth Street runs east and west, Jackson Street runs north and south. The City owns and operates a municipal waterworks with city wide water distribution. It has a main on Fifth Street and also one on Jackson Street.

It is conceded that the defendant has sole and exclusive control over all the water mains. That all connections with the mains by water consumers are installed by the City and under City ordinances in effect from 1913, the responsibility for all lines from the main to the place of consumption has been upon the consumer. At least from 1884 and prior to 1913, the consumer was responsible for the line only from the outside line of the sidewalk to the place of consumption. Water installations usually have two valves. The one at the main itself, called a corporation cock, is exclusively under the control of the City. Between the main and the place of consumption, usually in the parking, is a valve or curb stop on the service line which may be used by the consumer or by the City to control the flow of water onto the premises. The corporation cock can only be reached by excavation to the main itself, while the curb stop is fitted with a pipe running to the surface of the ground in which may be inserted a key to open and close the same. It also appears that it is and has been for years the practice or custom of the defendant City in cases where an existing service line is disconnected and a new connection made in the same vicinity, to close the corporation cock on the old or discontinued service line and cut the service line at the time that it connects the new line to the main. The reason for this being 'that if they, (service lines) are shut off at the building and not disconnected at the main there is a very real danger of them (service lines) corroding or giving out and water coming out onto the property' as the service lines are not made of the same durable material as are the mains.

On January 4, 1960, plaintiff observed that cracks were appearing in the walls of his building, which it clearly appears was due to water seepage from the defendant's water system. Records at the city office showed that in 1887 four 3/4 inch taps or corporation cocks were attached to the main on Fifth Street at a point 71 feet east of Jackson Street; also on Fifth Street 65 1/2 feet east of east line of Jackson Street and 2 feet from the curb was a stop box or curb stop. This same record states that 'all taps off at main. 7-4-1934 (WH).' On January 7, 1960, the city employees, seeking the source of the seepage, excavated to the main at the place where the four taps were and found the corporation cocks open, contrary to such record. When the four taps were closed the flow of water ceased. In reaching these taps water was encountered in such quantities as to require the use of two pumps to clear the excavation. This water came into the excavation from the north, towards the main, and at the time the corporation cocks were closed and the excavation filled and pavement restored, no one knew the source of the leak. It was known that there was no leak at the main. Over a year later, April 1961, and after the trial had started and both sides had rested, at the direction of the trial court the case was reopened and a new excavation made 'to determine what did actually exist under the ground at the area of Fifth and Jackson with reference to the Scott property and particularly with reference to the water connections from the main'.

The excavation revealed the main, the four corporation cocks and leads attached thereto, which had been cut by the city in January 1960; the four 3/4 inch leads went into a two inch header, several feet north of the main and parallel therewith; a two inch pipe extending north and west from this header towards plaintiff's property for a distance of some ten feet where it connected with a curb cock with the pipe continuing north a foot to a one half inch union. This pipe then continued north into plaintiff's property. The curb cock was buried under at least two feet of dirt and pavement with no access thereto except by excavating. It had been so buried at least since 1932 and had been about 7/8ths closed by someone at sometime not disclosed. The union, a foot north of the curb cock and located about a foot north of the then outside line of the sidewalk, had deteriorated and broken. It seems to be agreed that the source of the leak in 1960 was from this union

I. Count I of the petition asserted several specific alleged acts of negligence including failure to shut off the taps in the water main thus allowing the water to escape through the deteriorated service line. The trial court held plaintiff failed to prove this alleged act of negligence and also that such negligence, if...