Wheatley v. City of Fairfield
| Decision Date | 23 January 1936 |
| Docket Number | 43024. |
| Citation | 264 N.W. 906,221 Iowa 66 |
| Parties | WHEATLEY v. CITY OF FAIRFIELD et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, Jefferson County; Elmer K. Daugherty Judge.
Opinion states the facts.
Affirmed.
Thoma & Thoma, of Fairfield, for appellant.
Ralph H. Munro and James P. Starr, both of Fairfield, for appellees.
Plaintiff is the owner of a 357-acre farm in Jefferson county, Iowa. The city of Fairfield, Iowa, purchased and is the owner of a tract of land lying adjacent to and immediately south of plaintiff's farm. There is a meandering natural water course running from a northerly to a southerly direction across both of these tracts. A public highway running east and west separates the two tracts. The city purchased its land for the purpose of erecting a dam across the natural water course or gully for the creation of a reservoir to supply city water. This dam is located about 120 rods south of the south line of the plaintiff's farm. The dam was completed about April 1, 1925. The erection of this dam resulted in flooding about 20 acres of the plaintiff's land. There were negotiations of settlement between plaintiff and the defendant city, without results, which extended over a period of about four years. In February, 1929, plaintiff brought suit in equity, being cause No. 9242, in which he sets up the flooding of his land, the destruction of a valuable spring on his farm, and the destruction of a concrete bridge across this water course which he used in going from the portion of the farm on which his buildings are situated across to the east 104 acres of the farm which are cultivated, alleging that the dam had created a nuisance and had greatly damaged his farm, and praying for an injunction and for an abatement of the nuisance and for damages to the occupational or rental value of the farm of $1,000 a year for the four years since the erection of the dam, up to the time that suit was commenced. He later filed an amendment asking for an additional six months' occupational damage of $500, making the total amount of damage prayed for $4,500, and also prays for general equitable relief.
The city joined issue by answer. Before the case was reached for trial, the city, on July 10, 1929, commenced condemnation proceedings to condemn 18.43 acres of the plaintiff's land, being the flooded area. The avowed purpose is stated, " to be used for and in connection with a storage reservoir for the city water works of said city."
The plaintiff prepared and filed a claim for damages with the sheriff of the county; a sheriff's jury was selected to appraise the damages, resulting in an award of $34,310.83. The city, of course, appealed from this award to the district court, and on May 18, 1930, a petition, in which John W. Wheatley was named as plaintiff, and the City of Fairfield, Iowa, as defendant (in accordance with sections 7841, 7841-c1, Code 1927), was filed in the condemnation case, in which is reiterated the various elements of damages set up in the equity case and other additional allegations with reference to some items not mentioned in the equity case; to which petition the city duly filed answer. The condemnation case is known in the record as law No. 9344. The equity case and the condemnation case were, with the consent of the parties, consolidated by the lower court for the purpose of trial only, and tried to the court.
The evidence introduced related almost entirely to the question of damages to the farm as a whole. No evidence was introduced relating to rental or occupational damages, such as the depreciation in rental value of the farm from year to year. There was testimony with reference to all the different elements which might or could enter into the question of depreciation of the value of the farm before and after the dam was erected; but on the question as to the amount or measure of damage, the matter inquired about was confined entirely to the difference in the value of the farm before the dam was erected and the land flooded, and the value of the farm after; and although these cases were started four years after the dam was erected, the evidence, without objection, all related back to April 1, 1925, when the dam was erected, and the finding of the court as to the amount of the damage was fixed at $14,000, and the plaintiff was awarded that amount, with interest thereon at 6 per cent. per annum from April 1, 1925. No judgment was entered in the condemnation suit, except for costs. This is in accordance with section 7842, Code 1931.
In the equity case a provisional injunction was granted, but no judgment for damages of any kind was found or entered of record, and there is no reference by the court in its decree in the equity case to any damages, except a reference to the award made by the court in the condemnation case. We will set out this decree in connection with our further consideration of this point later on in this opinion.
The defendant city appealed from the decision of the court in each and both of these cases, and on appeal the cases were consolidated and presented to this court together on the record made below. There was an affirmance of the judgments in both cases. The result may be found in the case of Wheatley v. City of Fairfield, 213 Iowa 1187, 240 N.W. 628, to which reference is made for a more extended statement of facts and the findings of the court below and in this court on appeal.
Thereafter, at the September, 1932, term of this court, the plaintiff filed a motion in the Supreme Court for taxation of attorney fees and costs, and for judgment on the supersedeas bond for the amount of the award. Upon hearing this motion was sustained, in so far as the costs are concerned, and judgment rendered upon the bond for the costs in both cases in the court below and in this court. In all other respects the motion was overruled.
Thereafter, on November 12, 1932, the plaintiff filed in the original equity suit, cause No. 9242, a motion for the issuance of a mandatory injunction and order requiring the sheriff of the county to remove the dam on defendant's land. This motion was heard in the district court of Jefferson county and decree entered therein on December 30, 1932, awarding the plaintiff the relief as prayed. The city petitioned this court for a writ of certiorari, which was granted. See case of City of Fairfield v. Dashiell, 217 Iowa 474, 475, 249 N.W. 236.
On September 6, 1932, a resolution was passed by the city council to the effect that the city " abandon the condemnation proceedings." It should also be stated that on April 21, 1932, the city council passed another resolution directing the city engineer to at once drain sufficient water out of the reservoir to avoid holding the water on the Wheatley land. This order was carried out by the engineer and the water lowered in the dam, so that very little water remained on plaintiff's land, except on the occasion of heavy rainfall. This lowering of the water was accomplished by means of two openings which were built into the dam at the time it was constructed. One is a sixteen inch pipe, provided with a valve, which can be opened and closed, and the other is a twelve-inch pipe for connection with the city pump that can also be opened and used for draining out the water. Needless to say, these openings are insufficient to carry off the water from a large watershed of some 1800 acres in times of great precipitation.
On the 19th day of April, 1934, the case at bar was commenced by the plaintiff filing what he denominates " Petition for Writ of Mandamus, and Equitable Relief," in two counts. In count 1 he sets up what he claims to be a judgment for $18,307.34, with interest at the rate of 6 per cent. per annum from the 16th day of June, 1930, being the amount of the award, and praying that the city be required by mandamus to levy and collect a sufficient tax to pay said judgment, with interest and costs. In count 2 he asks for alternative relief, setting up the fact of this award and alleging that the same has never been paid, and also alleging that the attempted abandonment on the part of the city was not in fact an abandonment of the project, that the dam remained the same as it always had been, and praying for a judgment for the amount of the award, and also for occupational damages for the years 1925 to 1934, inclusive, which occupational damages are itemized as follows:
Depreciation in rental value for six years, $1,000 per year, $6,000; Depreciation in rental value for the years 1931 to 1934, inclusive, $600 a year, $2,400; destruction and loss of spring, $1,500; damage to drainage system and cost of restoring same, $1,000; attorney fees, $5,000; damage by destruction of cement bridge across the water course, $4,000; and some additional damage to livestock which mired down in the mud-making a total claim of $20,515.
By way of answer the defendant city, in addition to general denial and specific denials, plead as matters of affirmative defense that plaintiff's damages, if any, were all adjudicated in cause No. 9242, equity, and plead further that his action is now barred by the statute of limitations.
The plaintiff, by way of reply, alleges that the occupational damages or depreciation in rental value for the years 1925 to 1930, inclusive, could not have been adjudicated in the trial which occurred at the April, 1930, term of the district court in Jefferson county, and that the plaintiff's right of recovery therefor did not arise until after the determination of the condemnation case on final appeal and refusal thereafter by the city to pay the award as determined upon final appeal, and that as to the occupational use or rental...
To continue reading
Request your trial