Stodghill v. The Chicago, B. & Q.R. Co.

• Decision Date: 20 April 1880
• Citation: 5 N.W. 495,53 Iowa 341
• Parties: STODGHILL v. THE C., B. & Q. R. Co
• Court: Iowa Supreme Court

5 N.W. 495

53 Iowa 341

STODGHILL v. THE C., B. & Q. R. Co

Supreme Court of Iowa, Des Moines

April 20, 1880

Appeal from Wapello Circuit Court.

CHRISTOPHER STODGHILL was the owner of a farm of some four hundred and eighty acres in Wapello county. Part of said farm consisted of a tract of twenty-nine 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 the 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 case 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 twenty-nine 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 plaintiffs for one dollar actual damages, and seventy-five dollars 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.

REVERSED.

Stiles & Lathrop, for appellant.

Wm McNett and A. B. Hendershott, for the appellee.

OPINION

ROTHROCK, J.

I.

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 is of such 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 case 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 Railroad 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 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 which to maintain a highway. The injury done to the town is, then, a permanent injury, at once done by the...