Wenck v. Carroll Cnty.

• Citation: 140 Iowa 558,118 N.W. 900
• Parties: WENCK ET AL. v. CARROLL COUNTY.
• Decision Date: 17 December 1908
• Court: United States State Supreme Court of Iowa

140 Iowa 558

118 N.W. 900

WENCK ET AL.

v.CARROLL COUNTY.

Supreme Court of Iowa.

Dec. 17, 1908.

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

Action at law to recover damages for trespass. The court having sustained a demurrer to the petition, the plaintiffs elected to stand upon their pleading, and from a judgment rendered against them for costs they appeal to this court. Affirmed.George W. Bowen, for appellants.

E. A. Wissler, for appellee.

WEAVER, J.

Stated briefly, the petition alleges the establishment of a drainage district, a portion of which bordered upon the land of plaintiff. He alleges that under the order for such establishment the ditch therein provided for was to have its outlet within or at the boundary line of said district, but that, instead of observing this plan, the county unlawfully and illegally caused the extension and excavation of said ditch across the line and for some distance into and upon plaintiffs' premises, with resulting injury thereto, for which he seeks to recover damages. Several grounds of demurrers are assigned, but we need consider only the one which asserts the nonliability of the county for trespassers or other torts committed by or under the order of its supervisors or other officers. The rule governing this class of cases has been too often decided against the appellants' contention to justify us in entering upon an extended discussion of the subject at this time. See Packard v. Voltz, 94 Iowa, 277, 62 N. W. 757, 58 Am. St. Rep. 396;Kincaid v. Hardin County, 53 Iowa, 430, 5 N. W. 589, 36 Am. Rep. 236;Green v. Harrison County, 61 Iowa, 311, 16 N. W. 136;Dashner v. Mills County, 88 Iowa, 401, 55 N. W. 468;Lindley v. Polk County, 84 Iowa, 308, 50 N. W. 975;Nutt v. Mills County, 61 Iowa, 754, 16 N. W. 536; 11 Cyc. pp. 497, 498; 7 A. & E. Encyc. Law (2d Ed.) pp. 947, 948.

It is true that in some exceptional cases counties have been held liable for injuries occasioned by negligence of their officers in the performance of certain duties, but there is no attempt to bring the plaintiffs' case within the doctrine of any of these exceptions. It, in effect, charges that, acting by its board of supervisors or other officers or agents, the county wrongfully and unlawfully entered upon plaintiffs' premises and excavated a ditch thereon, through which his fields have been flooded with water. The county could not authorize any such wrong, and its assumed authority could afford no excuse or...