Wilson v. City of Ottumwa
| Decision Date | 18 October 1917 |
| Docket Number | 31661 |
| Citation | 164 N.W. 613,181 Iowa 303 |
| Parties | A. D. WILSON, Appellee, v. CITY OF OTTUMWA, Appellant |
| Court | Iowa Supreme Court |
Appeal from Wapello District Court.--SENECA CORNELL., Judge.
AN action for damages against the defendant city on account of the alleged maintenance of a nuisance. Judgment for plaintiff for $ 1,264.50. Defendant appeals.
Reversed.
Merrill C. Gilmore, for appellant.
Steck & Steck, for appellee.
What is now known as Fairview Addition to the City of Ottumwa was platted in 1890 and annexed to said city in 1903. Prior to 1890, a creek or natural watercourse extended from the premises of plaintiff to a point northeast, for a distance of between a quarter and a half mile. About the year 1890 private owners of the property covered it, for a distance of about a block and a third, by a brick arch. As originally constructed, the brick arch was above Second Street, but in the same year was extended across Second Street by the board of supervisors. Prior thereto, there was a bridge across the waterway on this street.
There has been, and is now, a spring close to Fourth Street somewhat more than a block above where the waterway enters the premises of plaintiff. The waterway in question is variously referred to in evidence and by counsel in argument as a "sewer," a "storm sewer," and a "waterway." It appears from the evidence that it extends for something over a block on Grand Avenue, and then is located on private property, except where it crosses streets and alleys of said city. It has always served as an outlet for water flowing from the spring, and surface waters accumulating and flowing therein along its course. The purpose of constructing the brick arch appears to have been to confine and control surface waters coming down from above in the waterway, and to carry the same on to the southwest. But slight changes have been made in the streets crossing said waterway or adjacent thereto, but a catch basin has been constructed in Second Street over said waterway, for the purpose of providing an outlet for surface waters flowing down this and perhaps other streets. It is not claimed that the defendant city has in any way changed the watercourse or interfered therewith, except to construct a catch basin, as above stated, nor has the same in any way been made a part of the sewer system of defendant, nor have the surface waters discharged therein from the streets of defendant been in any way increased or altered since the annexation of Fairview Addition.
In two amendments to plaintiff's petition, it was claimed that some of the filth complained of was carried from the street in drains and waterways constructed by defendant through the catch basin into the waterway and upon the premises of plaintiff, but all allegations relating to said matters were withdrawn by plaintiff, and no claim is now made that the city, by ditches, drains or waterways constructed or improved by it, has contributed to the condition complained of. The claim of plaintiff is that, since the annexation of Fairview Addition to defendant city, modern residence have been erected on either side of Grand Avenue; and that, with the knowledge, consent and permission of the officers of defendant, numerous residents have constructed private drains from their sinks and water-closets in said residences and connected the same with said waterway, and there is discharged therefrom filth and fecal matter, which is carried to and deposited upon the premises of plaintiff, and becomes stagnant and emits foul and un healthful vapors and odors, and that same has so polluted the spring water, formerly valuable for watering stock and other purposes, as to render the same unfit therefor.
There is little conflict in the evidence as to the effect upon the spring water of the fecal matter, or the condition claimed by plaintiff to exist upon the premises in question, but the defendant city denies that it at any time gave consent to anyone, or in any way knowingly permitted any person, to connect private drainage with said waterway; and that, if such use has been made thereof by the residents of said city, as claimed by plaintiff, it has been without the consent or permission of the defendant. As before stated, the defendant has at no time attempted to, in any way, connect private drainage therewith or make same a part of the sanitary sewerage system of said city. Plaintiff, some time before the commencement of this suit, gave notice to the officers of defendant of the conditions complained of, whereupon an investigation was made by said officers, which resulted in causing connections from two or three residences with said waterway to be destroyed; and at one time the defendant, at plaintiff's request, flushed the arched waterway. The size and manner of construction of the alleged arched sewer or waterway are not shown, except that same is constructed of brick in the form of an arch. Except as covered in the manner described, the waterway for the rest of its course is open, and filth from barns and other buildings, and from other sources along its course, may be carried into the same by surface water without obstruction, and on through the arched portion thereof.
If the term "storm sewer" is applicable to that portion covered by the brick arch, it is solely on account of said arch. It does not appear that the waterway was in any way changed or altered by the construction thereof. It is not a sewer, as that term is ordinarily understood, and as it is used in the decisions cited. City of Durham v. Eno Cotton Mills, (N. C.) 57 S.E. 465; Mound City Land & Stock Co. v. Miller, (Mo.) 70 S.W. 721; State Board of Health v. Mayor of Jersey City, (N. J.) 35 A. 835. It is rather, as appears from the foregoing statement, a natural drain or watercourse, by which the surface waters accumulating in the vicinity thereof are carried away to the southwest and onto the premises of plaintiff.
No evidence was offered to show that defendant granted permission or consented that residents on Grand Avenue or elsewhere might connect private drainage with said waterway or make same an outlet for waste matter from the residences adjacent thereto, or that the city had knowledge that same was...
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