Watt v. Robbins

• Decision Date: 02 July 1913
• Parties: WATT v. ROBBINS ET AL.
• Court: Iowa Supreme Court

160 Iowa 587

142 N.W. 387

WATT

v.ROBBINS ET AL.

Supreme Court of Iowa.

July 2, 1913.

Appeal from District Court, Sac County; F. M. Powers, Judge.

Action to enjoin defendant from maintaining a dam across Coon river, and for damages claimed to have been sustained by the plaintiff by the backing of water upon his land above the point where it is claimed the dam was erected and maintained. Judgment and decree for the defendant. Plaintiff appeals. Modified and affirmed.Chas. D. Goldsmith, of Sac City, for appellant.

Elwood & Stanfield, of Sac City, for appellees.

GAYNOR, J.

[1] On the 22d day of May, 1911, the plaintiff filed the following petition:

“Paragraph 1. That before and at the time of the committing of the injuries hereinafter complained of he was the owner and possessed of the certain farm and timber lands situated upon the Coon river, in Sac county, in this state, described as follows, to wit: Ten acres on the N. E. 1/4 of S. E. 1/4 of section 14, township 88, range 36 W., and above the premises of the defendants hereinafter mentioned and described, and had the right to have the water flow from his said farm and timber lands and in the natural channel of said river, without any obstruction whatever.

Par. 2. That on the 20th day of May, 1911, the defendants (having theretofore maintained a dam across the bed of said river that would, in no manner, without raising the height thereof, interfere with plaintiff's lands, and below plaintiff's said lands) threaten to and are now raising the height of the said dam, with the intention of keeping the same up, and have and are thereby obstructing the flow of the water of said river, and thereby raise and threaten to raise it in the bed of the river, and thereby backing it upon the said farm and timber lands of plaintiff, to wit, to the height of two feet, thereby impeding and checking the natural flow of the water therefrom and causing the water so backed up and overflowing, to drown out and kill plaintiff's timber and crops, and thereby diminishing the value of plaintiff's said property to the damage of fifteen hundred dollars. That he has no speedy and adequate remedy at law. Wherefore, plaintiff demands judgment for damages in the sum of fifteen hundred dollars, and asks that a temporary writ of injunction do now issue restraining the said defendants from raising the height and maintaining the height of said dam so as to interfere with, or overflow the said lands of plaintiff, and that, upon the final hearing of this cause, the said injunction be made perpetual, and for such other and further relief as may, in the mind of the court, be deemed equitable.”

The defendants filed their answer, in which they deny each and every allegation of plaintiff's petition, except that plaintiff is the owner of the land therein described, and that there was a dam erected in Coon river below plaintiff's land, which for many years was maintained at said place to a height of 14 feet; that the dam was constructed by the owners of the land on which it was constructed, and that by sale, grant, and deed a 14-foot dam was authorized to be constructed, and constructed by the owners of the land; that the dam so constructed was maintained as a right for more than 10 years prior to 1907 without objection from the plaintiffs, or the then owners of the land described in his petition, and defendant says the plaintiff is therefore barred by the statute of limitations in objecting to the maintenance of the 14-foot dam; that in July, 1907, the dam was raised about 5 inches and the defendant Robbins for himself and the said milling company settled with the plaintiff for the right to so maintain it for one year from July 1, 1907, to July 1, 1908; that in July, 1908, the dam was reduced 16 inches below 14 feet high, and so remained until May, 1911; that in May, 1911, the defendants undertook to raise the dam 10 1/2 inches and no more, and that at no time since July 1, 1908, has the dam been raised or maintained to a height exceeding 14 feet; that through all conveyances from the owners, the defendant's grantors, the right to maintain the 14-foot dam was granted by deeds of conveyance. Defendant, further answering, says that at the time this action was commenced the dam complained of was but 12 feet 8 inches high.

It will be noticed from the foregoing statement of the issues that the plaintiff brings this action in equity, and it will be noticed that the plaintiff alleges in his petition that the dam maintained by the defendant across the river, as maintained prior to the 20th day of May, 1911, would in no manner without raising the height thereof interfere with plaintiff's land; that at the time this action was commenced, to wit, the 22d day of May, 1911, the defendants were threatening to and were then in the act of raising the height of the dam, with the intention of keeping the same up, and thereby obstructing the flow of the water, and thereby diminishing the value of plaintiff's land to the amount of $1,500, and that plaintiff has no speedy and adequate remedy at law. It will be noticed that in the prayer to plaintiff's petition he asks that a temporary writ of injunction issue, restraining the defendant from raising the height and maintaining the height of said dam so as to interfere with or overflow plaintiff's land, and that upon a final hearing the injunction be made perpetual. It will be noticed also that he demands judgment in the sum of $1,500.

To our minds, this petition presents a purely equitable action, and seeks an injunction to prevent threatened mischief. There is no allegation of damages actually sustained. The plaintiff positively states in the petition that the dam so constructed and maintained prior to the 20th day of May, 1911, if permitted to remain in that way, would in no manner interfere with plaintiff's land, unless the same was raised as contemplated by the defendant, and to arrest which this action was apparently brought. It would seem to us upon the reading of this petition that the thought of the pleader was that, in order to maintain the action, it was necessary to show that the conduct of the defendant against which the injunction was sought, if permitted, would affect the plaintiff injuriously; that this allegation as to damage was made as a basis for the maintenance of the action on the part of the plaintiff. It is true that in his petition he demands $1,500 damages, but there is no basis laid in the petition for damages for any act on the part of the defendant in the past. There is no allegation that the plaintiff received any injury from any act done by the defendant in the past. The petition negatives the idea that he suffered any injury by any act of the defendant in the past.

[2] Upon what theory, therefore, the plaintiff introduced evidence of damages sustained by him prior to the 20th day of May, 1911, and upon what theory he can claim that he is entitled to damage for any past act of the defendant, we are unable to conceive, in view of the positive averment of the petition that prior to the 20th day of May, 1911, the maintenance of the dam, as it then was, would not, and we assume therefore did not, in any manner interfere with plaintiff's land Evidence ought to correspond with the allegations made, and be confined to the point in issue. Prayer for relief that rests upon no allegation of the petition does not entitle the party to the relief prayed for.

[3] It must be borne in mind in the first place that our statute governing pleading provides that, where the petition contains more than one cause of action, each must be stated wholly in a count or division by itself, and must be sufficient in itself. Here we have but one count in which the plaintiff contends he has stated two causes of action; one in equity, asking protection against a threatened wrong, and the other an action at law in which he is seeking to recover damages for injury already done. Section 3545 of the Code provides: “Causes of action of whatever kind, where each may be prosecuted by the same kind of proceedings, if held by the same party, and against the same party, in the same rights * * * may be joined in the same petition.” It is true that section 4302 of the Code of 1897 provides that where a nuisance exists, and a civil action by ordinary proceedings is brought to enjoin and abate a nuisance, recovery for damages sustained may be had therein. This is where the action is brought at law to enjoin and abate the nuisance. It is true that section 4354 of the Code provides that an injunction may be obtained, as an independent remedy, in an action by equitable proceedings in all cases where such relief would have been granted in equity previous to the adoption of the Code; and in all cases of breach of contract or other injury, where the party is entitled to maintain and has brought an action by ordinary proceedings, he may in the same cause pray and have a writ of injunction against the repetition, or continuance of such breach of contract, or other injury, or the commission of any breach of contract or injury of a like kind arising out of the same contract, or relating to the same property or right, and he may also, in the same action, include a claim for damages or other redress.

Here we have joined, in an equitable proceeding, if plaintiff's contention is true, two causes of action which cannot be prosecuted properly by the same kind of proceedings. The first must be prosecuted in equity and the other at law, and in the last the plaintiff is entitled to be heard before a jury.

[4] It is true, as plaintiff contends, that the defendant made no objection to the uniting of the two causes of action in one count, and filed no motion requiring plaintiff to divide his causes of action into separate counts, and it is true, as plaintiff claims, that the defendant made no objection to the joining of a cause in equity, with a cause at law in the same petition, and perhaps...