Stodghill v. Chi., Burlington & Quincy R.R. Co.

• Decision Date: 20 April 1880
• Citation: 5 N.W. 495,53 Iowa 341
• Court: Iowa Supreme Court
• Parties: STODGHILL v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY.

53 Iowa 341

5 N.W. 495

STODGHILL

v.CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY.

Supreme Court of Iowa.

Filed April 20, 1880.

Appeal from Wapello circuit court.

Christopher Stodghill was the owner of a farm of some 480 acres in Wapello county.

Part of said farm consisted of a tract of 29 acres of creek or pasture land. The defendant's right of way for its railroad was located along the north line of said tract.

The natural channel of North Avery Creek ran across the right of way upon said tract, meandered through it, and recrossed the north line of the land and the right of way.

When the railroad was constructed bridges were built across the creek which spanned the channel and did not obstruct the passage of the water in the stream, nor divert it from where it was wont to flow. In 1874 the defendants cut a channel on the north side of their right of way and filled in the bridge where the stream entered plaintiff's land with earth, which diverted the stream into the new channel entirely, “except as the water backed through a culvert at a point where the water recrosses the right of way; the said bridge at the last named point having been previously removed, a culvert there constructed, and the stream filled in at this point, except the culvert aforesaid.”

Christopher Stodghill commenced an action against the defendant for damages to his land by reason of the diversion of the stream. He recovered a verdict and judgment for one dollar and costs. The cause was affirmed upon appeal to this court. See Stodghill v. C., B. & Q. R. Co. 43 Iowa, 26.

Said Stodghill died in the year 1876, and by his last will and testament, which was duly admitted to probate, he devised the said 29 acres, with other of his lands, to the plaintiff. This action was commenced in February, 1877, to recover damages for continuing to divert the water from the natural channel of said creek, and for a judgment directing the abatement and removal of the embankments in the original channel.

There was a trial by the court, without the intervention of a jury, and a judgment was rendered for plaintiff for one dollar actual damages, and $75 exemplary damages, and an order was made requiring the defendant to abate and remove said obstructions from the natural channel of the creek. Defendant appeals.

Stiles & Lathrop, for appellant.

Wm. McNett and H. B. Hendershott, for appellee.

ROTHROCK, J.

1. When the earth was deposited in the channel of the creek, and raised to a sufficient height to cover over the bridge, and make a solid embankment upon which to lay the railroad track, the water in the creek was at once turned into the new channel. The principal question in the case is whether the judgment for damages, in favor of Christopher Stodghill, was a full adjudication for all injuries to the land, not only up to the commencement of that suit, but for all that might thereafter arise.

In Powers v. Council Bluffs, 45 Iowa, 652, the question being as to what is a permanent nuisance, it was held that where it was of such a character that its continuance is necessarily an injury, and that when it is of a permanent character, that will continue without change from any cause but human labor, the damage is original, and may be at once fully estimated and compensated; that successive actions will not lie, and that the statute of limitations commences to run from the time of the commencement of the injury to the property. That was a cause where the plaintiff sought to recover damages against the city for diverting the natural channel of a stream called Indian creek by excavating a ditch in a street in such a manner that it widened and deepened, by the action of the water, so as to injure plaintiff's lot abutting upon said street. The same rule was recognized in Town of Troy v. Cheshire R. Co. 3 Foster, (N. H.) 83. In that case the defendant constructed the embankment of its railroad upon a part of a highway. The action was by the town to recover damages. The plaintiff claimed that it was entitled to recover for the entire damages for the permanent injury. The court said: “The railroad is, in its nature, design and use, a permanent structure, which cannot be assumed to be liable to change. The appropriation of the roadway and materials to the use of the railroad is therefore a permanent diversion of that property to that new use, and a permanent dispossession of the town of it as the place on...