Wendt v. Incorporated Town of Akron

• Decision Date: 24 September 1913
• Citation: 142 N.W. 1024,161 Iowa 338
• Parties: PAUL WENDT, Appellee, v. INCORPORATED TOWN OF AKRON, Appellant
• Court: Iowa Supreme Court

142 N.W. 1024

161 Iowa 338

PAUL WENDT, Appellee, v. INCORPORATED TOWN OF AKRON, Appellant

Supreme Court of Iowa, Des Moines

September 24, 1913

Appeal from Plymouth District Court.--HON. DAVID MOULD, Judge.

ACTION to recover damages for flooding the basement of plaintiff's store, and injury to merchandise therein alleged to have been caused by the negligence of defendant in the grading of its streets and construction of gutters, by which, it is claimed, the defendant collected and diverted surface water and failed to provide outlets. There was a trial to a jury resulting in a verdict and judgment for plaintiff for $ 880.99. Defendant appeals.

Affirmed.

T. M Zink, for appellant.

W. T Kidd, and Struble & Struble, for appellee.

OPINION

PRESTON, J.

The record contains 450 pages of printed matter; of this the arguments cover two hundred and forty pages, in which more than nine hundred cases are cited. Appellant has seventy-eight alleged errors relied upon for reversal, and appellee has one hundred and twelve points relied upon for affirmance. We appreciate diligence and thoroughness on the part of counsel, but unless there is discrimination it is sometimes burdensome. There are other cases on the calendar. Manifestly it would be impracticable to discuss all points argued. The material points are about as follows: The town of Akron is situated on low land. There is a bluff on the east, high land to the north, and a part of the land south is low. Running along the south side of the town outside of the corporate limits is a large ditch which drains about a thousand acres of land. The water in this ditch flows west, sometimes overflowing, when a part of the overflow runs to the north. At least it is plaintiff's claim that some of the overflow from this ditch reaches plaintiff's premises by reason of the grading and guttering of the streets north of this ditch. In the south part of town there is a slight rise in the ground, south of which the water would naturally run west. The natural drainage in the town generally is northwest to Sioux river, which runs near to the northwest part of town. Plaintiff, as tenant, occupied the first story and basement of a two-story brick building in the town of Akron as a store. The building fronts to the north and is on the corner of Reed street, which runs east and west, and Third street on the east running north and south. It is three or four blocks from the river. Mill street is north of and parallels Reed, and Dakota street on the south is parallel with Reed. Fourth street is east of Third. School house square is two or three blocks southeast from plaintiff's premises. There is a fall of about nine feet from the schoolhouse to plaintiff's corner. There is or was a low place or swale running northwest from the schoolhouse, crossing Reed street between Third and Fourth, about a half block east of plaintiff's property. Plaintiff claims that the sidewalk and embankment on Reed street has a tendency to hold the water in the swale in time of high water and throw it west towards plaintiff's property; that there are no openings in the embankment. The ground is low at plaintiff's corner. The town had not passed any ordinance establishing grades, but it is claimed by plaintiff, and there is evidence tending to so show, that the building occupied by plaintiff was built about fifteen years prior to the injury complained of, on a grade given by the city authorities. The top of the cement sidewalk at the north and east of plaintiff's building is about one foot above the gutter; some time before the flooding in question the walk had been made higher to prevent water coming into the basement. The face of the walk was cemented from the top to a point below the surface of the gutter. There is a cement gutter thirty-three inches wide at the north of plaintiff's building which carries the water west, and a dirt gutter on the east side of the walk which carries the water north. There is a culvert from the east side to the west side of Third street at the northeast corner of plaintiff's building. This culvert is four feet wide and one foot deep and is covered, forming a crossing. At the northeast corner of plaintiff's sidewalk is a telephone pole about fifteen inches in diameter in the gutter or culvert; it passes through the cover of the culvert and into the ground. This pole is four or five inches from the walk and to it and to the culvert a piece of 2x4 has been nailed. There are two basement windows at the front with gratings in the walk and four such at the south side of the building for light and ventilation. On the east side of the building at the northeast corner is an areaway twenty-five feet long and three feet wide with a stairway to the basement. These openings were constructed for the convenience of the owner and occupants of the property. There had been another basement stairway at the south end of the building, but this had been covered with plank and timbers joined tightly together. There were double doors at the foot of this stairway but the areaway had not been filled. This stairway was not in the street.

Without going too much into detail, this describes the general situation. The evidence is undisputed that defendant had, by grading its streets, constructing gutters, etc., attempted to care for and control the surface water and to carry it to the river. Many grounds of negligence were charged by plaintiff. Those submitted to the jury were substantially as to whether defendant was negligent in diverting the surface water naturally flowing on the south side of town to the north in such manner as that said water or a part of it was collected and carried to the plaintiff's corner, and in diverting other surface water falling on the town site, or which flowed down upon the town site from the ravines east of the town and taking it to plaintiff's corner; whether defendant obstructed the water by the telephone pole at plaintiff's corner and other obstructions; and in failing to furnish sufficient outlets for the water. The evidence was such that it was for the jury to say whether the negligence of defendant had been established, and, if so, whether it was the proximate cause of the damage, and as to whether the storm was unprecedented. The verdict has sufficient support as to these matters.

Defendant answered, denying all allegations of the petition not admitted; admitted that it worked and graded the streets, built culverts at various places, and that at other places it did not build culverts; alleged that one of the cellarways and the areaways in the sidewalk were located in the street without authority of the town, and that they were a nuisance, and that by reason thereof plaintiff was a trespasser; that the water passed into the basement through these openings and through the old cellarway at the south end of the building; that plaintiff contributed to his loss and damage; that the building is situated in what was the natural flow of the surface water, and that the acts of defendant did not place plaintiff in any worse condition, but that he was in a better situation than he would have been had it not worked the streets; that the storm that caused the damage was unprecedented. The affirmative allegations of the answer are denied by plaintiff, except he admits using the areaways and says he did so in the usual way of merchants and for no other purpose. He says the building was constructed fifteen years prior to the injury complained of, and that the authorities of the town had knowledge of the construction thereof with all openings into the cellar, made no objection, and consented thereto and acquiesced therein. It is conceded that plaintiff was damaged, and there is no contention as to the amount of the verdict.

The evidence establishes that the water passed into the basement through the areaways and cellar stairways. There is some conflict as to what portion went into the front cellarway and windows and what part at the old cellarway. Plaintiff claims that the water was obstructed at the corner and backed into the front cellarway and the south windows. He testifies he did not then know that any water got in at the back cellarway, while defendant claims that the basement would have been filled from this alone.

I. The larger part of appellant's argument is taken up with matters connected with the rights and liabilities of the parties because of the use of the basement openings and because the water passed into the basement through them, thus causing the damage. A determination of the question in regard to the areaways will dispose of some of the other points. It is contended by appellant that plaintiff and the owner of the building occupied by him had no right to use any part of the street for private purposes nor for areaways, cellarways, and windows, and that under the statute they constituted a nuisance; that the town had no power to grant any such rights. Many cases are cited in support of the proposition. No question is made in regard to plaintiff's rights because he is the tenant of the owner. It is true the statute provides that an obstruction in the street is a nuisance, and that cities and towns are required to keep the streets open and free from nuisances. Code, sections 753, 5078. But the statute also provides that they shall have the care supervision, and control of all public streets within their limits. Code, section 753. There is a conflict or contradiction in these statutes. But an abutting property owner has an interest in the street distinct from his interest as a citizen of the municipality (Long v. Wilson, 119 Iowa 267, 93 N.W. 282); and the rule is settled in this state that, under the power to control, cities and towns may permit the use of streets close to...