Willits v. Chi., B. & K. C. Ry. Co.

• Citation: 45 N.W. 916,80 Iowa 531
• Parties: WILLITS v. CHICAGO, B. & K. C. RY. CO.
• Decision Date: 05 June 1890
• Court: Iowa Supreme Court

80 Iowa 531

45 N.W. 916

WILLITS

v.CHICAGO, B. & K. C. RY. CO.

Supreme Court of Iowa.

June 5, 1890.

Appeal from district court, Van Buren county; CHARLES D. LEGGETT, Judge.

Action for damage because of overflow of plaintiff's lands caused by the construction of defendant's road. Judgment for plaintiff, and defendant appealed.Sloan, Work & Brown and H. H. & Palmer Trimble, for appellant.

Wherry & Walker, for appellee.

GRANGER, J.

In 1871 the Burlington & Southwestern Railway Company constructed its line of road across the lands of the plaintiff, and the petition sets out that because of such construction an embankmentwas made “which prevents the surface and other waters coming on said lands * * * from flowing off the same in its natural course, and causes the same to collect upon and flow back and over plaintiff's meadow and other lands. And that the defendant has so constructed said embankment as to cause the water to collect and remain upon plaintiff's lands, thus causing a nuisance, and greatly damaging and injuring the use and occupation of * * * said lands.” It is also averred that such damage has continued for more than five years, and asks for damage resulting within five years. The answer is a denial, and avers the construction of the road in 1871, and that the embankment complained of was then made and has since been continued, and that the defendant company bought the road in February, 1882, and claims that the cause of action is barred because more than five years have elapsed since it occurred. Evidently with a view to avoid the effect of defendant's plea of the statute, the plaintiff gave evidence showing that, soon after the construction of the road, a ditch was opened on the company's right of way, through which water from plaintiff's land would run to a creek, and that this ditch was continued by being opened from time to time to within a year or less before the commencement of the suit, but it appears that the ditch was not sufficient to prevent the overflow complained of. The evidence on this point was admitted against objections of the defendant, and as applicable to this testimony the court gave the following instruction: “(5) Evidence has been admitted tending to show that the embankment of the railroad has obstructed the passage of surface water from plaintiff's adjoining lands every year since the road was built across the lands. But before you consider the question whether such obstruction of the surface water...