Wm. Tackaberry Co. v. Simmons Warehouse Co.
| Decision Date | 10 May 1915 |
| Docket Number | No. 29660.,29660. |
| Citation | 170 Iowa 203,152 N.W. 779 |
| Parties | WM. TACKABERRY CO. v. SIMMONS WAREHOUSE CO. ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Woodbury County; John F. Oliver, Judge.
Action for damages for flooding the basement of plaintiff's business room and the destruction of merchandise by water alleged to have been diverted from Perry creek by obstructions which are alleged to have been placed therein by the defendants. It is also asked that the nuisance thus maintained be abated. The cause was tried to a jury. At the close of plaintiff's evidence, the court sustained a motion to direct a verdict for the city. The motion was based upon numerous grounds, one, and perhaps the chief, of which was upon the claim of the defendant city that the bridge was constructed by it in its governmental capacity, from plans drawn by a competent engineer and adopted by the city. At the close of all the testimony, the court sustained a motion to direct a verdict for the other defendant. This motion was on numerous grounds. But it seems to be conceded that the chief ground of the ruling was based upon the claim that the storm and flood was such an unprecedented one as to constitute an act of God. Plaintiff appeals. Affirmed.M. L. Sears and Edwin J. Stason, both of Sioux City, for appellant.
F. L. Ferris, of Sioux City, and Lewis S. Haslam, of St. Louis, Mo., for appellee Simmons Warehouse Co.
A. C. Strong, F. E. Gill, Schmidt & Pike, and Sam Page, all of Sioux City, for appellee Sioux City.
The case has been here before. 154 Iowa, 358, 132 N. W. 945, 134 N. W. 1064, 40 L. R. A. (N. S.) 102. As originally brought, the suit was against 18 other defendants. The former appeal was from a ruling sustaining motions by defendants to separate on the ground that the allegations of the petition did not show a joint liability. That motion was sustained by the district court and affirmed in this court. In a supplemental opinion on the former appeal, it was suggested that if plaintiff should choose to confine its petition against the two present defendants to an alleged cause of action wholly joint, and to eliminate therefrom all allegations upon which several liability can be predicated, it might be done. On the case being remanded, plaintiff filed a substituted petition as against the two present defendants by which it sought to charge a joint liability. When the case came on for trial again, these defendants again filed motions to separate, which were overruled. The substituted petition, as did the original petition, charged that the defendants were maintaining a nuisance by obstructing the creek, and also charged them with negligence. A somewhat extended abstract of the allegations of the original petition is set out in the opinion on the prior appeal, and we shall endeavor to not repeat what is there set out, but simply refer to the former opinion. As to the alleged joint liability of the defendants, the substituted petition alleges, substantially, that the defendant city was willfully, carelessly, negligently, and improperly maintaining, in conjunction with and as a part of a single and continuing structure, with the structure of its codefendant hereinafter described, a large iron bridge in and across said creek in such a manner as to materially lessen the capacity of said stream and to prevent the water thereof from flowing in its usual channel into the Missouri river, and, in connection with said bridge, the said defendant was similarly maintaining a closed apron to the south of the bridge and closely joined with it in such manner as to prevent overflow water from the creek from returning to the channel thereof. Similar allegations are made as to the defendant Simmons Warehouse Company in regard to a cement conduit. The defendants filed separate answers, denying the allegations of the petition, admitting the existence of their structures, alleging that each structure was erected and maintained independent of the other, and setting up other defenses which will be referred to in the course of the opinion.
[1][2][3] The case is now here for review upon the testimony introduced. The determination of the case turns largely on the question whether, under the undisputed evidence, the flood which caused the damage to plaintiff, and which occurred July 10, 1909, was an unprecedented one. Though the testimony on this branch of the case had not been introduced, except as it was brought out in plaintiff's case in chief, at the time the court sustained the motion of the defendant city for a verdict, it was one of the defenses of the city that the flood was unprecedented, and that defense is common to both defendants.
It would not be practicable to attempt even to set out any considerable part of the testimony within the proper length of an opinion. We are abundantly satisfied, from a reading of the entire record and the elaborate and carefully prepared arguments of counsel, that it was such a flood as is contended for by defendants.
A large plat was introduced in evidence, showing the meanderings of the creek within the city limits and the different streets over which the water came from the north. We here set out a part of this plat, showing the immediate situation of plaintiff's property, the bridge in question at Fourth street and West Third street, the property and conduit of the Simmons Company, and the creek at this point, the pile bridges of the Milwaukee Railway, and the bridge of the Sioux City Service Company just below the conduit in question. These pile bridges are referred to by some of the witnesses as forming a letter “V.”
There are other bridges of other companies and of the defendant crossing this creek above Fourth street, and three railway bridges below. The railway embankment south of plaintiff's property is about two feet high. The creek has numerous bends within the city. Commencing at West Ninth and Fourteenth streets the creek runs east for about a block, then southeast, then south about half a block, then southwest, then southeast, then sharply to the southwest, or nearly west, then turns in a large bend and runs northeast to a point between Eleventh and Twelfth streets, then nearly south, then southeast, then south, and at Ninth street nearly west, turning in a bend to the east again, crossing Pearl street, on which plaintiff's property is situated between Eighth and Ninth streets, then southwest again, crossing Pearl street, and running then southwest about four blocks. This bend extends west of Water street about a block and a half, then runs southeast, then south to the bend shown in the plat. Plaintiff's property is at the lowest point. The ground slopes towards the creek for a little distance back. The properties of plaintiff and the defendant warehouse company are in the business district. Some of the buildings above Fourth street are built on the edge of the creek. A map was introduced in evidence showing the drainage area of this creek. It shows 72 square miles; length, 24 miles; length of channel, 37 miles; average fall, 4.5 feet per mile. Other plats were introduced in evidence showing the construction of the bridge and conduit in question, also a large number of photographs showing the destruction caused by this flood and the general situation.
1. Taking up now the question of fact as to whether there was an unprecedented flood on July 10, 1909, and without going too much into detail, we shall attempt to describe in a general way the conditions as they existed. It is substantially conceded by counsel for plaintiff that the rainfall was unprecedented above the city, for they say in argument that it is not claimed that there was not an unusual and extraordinary, if not an unprecedented, rainfall in the Perry Creek Valley 10 or 15 miles from Sioux City; neither is it claimed that there was not at the source of the creek, and in the farming section through which the creek flowed in its upper reaches, an unprecedented volume of water, nor that at some points within the city limits there was not an unprecedented amount of flood water accumulated in parts of the creek valley, although the evidence does not show that there was any rainfall within the city limits. But they contend that the defendants failed to show, by that weight of evidence that warranted the court in directing a verdict for them, that the overflow of the creek between Sixth street and the Fourth Street bridge was due to an unprecedented amount of water or rainfall which at any time reached that locality, and that it was the overflow there that caused the damage. They contend that the overflow was not due to an unprecedented volume of water at that point, but was due wholly to the obstruction placed and maintained in the creek channel by the defendants; also that the flood waters from the north, by spreading out in the lowlands and being held back by trees and vegetation, bridges, and other obstructions, reached and was able to reach the neighborhood of the defendants' obstructions only in such volume that, if the channel had been unobstructed by the defendants' structures, it would have passed to the Missouri river, with only the overflow, if any, into the streets and alleys of such quantities of water as is often found therein after a heavy rain, and which would have been taken care of by gutters and catch basins, without material damage to any one.
With these contentions of plaintiff we are unable to agree. It is shown by undisputed evidence that a large amount of water fell in a short time and over a limited area. A large number of witnesses were introduced on this point by defendant Simmons Warehouse Company as to flood conditions both north of the city for some miles and within the city and south to the Missouri river at the time in question and as to prior high waters for 47 or 48 years. Plaintiff introduced no witnesses in rebuttal of this evidence. There is testimony as to high waters in 18...
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Haley & Lang Co. v. City of Huron
...connection, then the city was not liable; it not being shown that the system installed was inadequate. Wm. Tackaberry Co. v. Simmons Warehouse Co. (Iowa) 152 N.W. 779. If the damage was proximately due to the unusual rainfall but was aided by the connection above described, then the city wa......