Citation Numbers: 181 Iowa 303
Judges: Gaynor, Preston, Stevens, Weaver
Filed Date: 10/18/1917
Status: Precedential
Modified Date: 7/24/2022
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 local-ed 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 confino and control surface waters coming down from above in the
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the catch basin into the waterway and.upon the premises of plaintiff, but all allegations relating to said matters were withdrawn by plaintiff, and no claim is now made that the city, by ditches, drains or waterways constructed or improved by it, has contributed to the condition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 residences 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
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. Tt is not a seiver, 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 Atl. 835. It is
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 so used, except such as came from the appearance of fecal and other foul matter along the course of said waterway and in the vicinity of plaintiff’s residence. The evidence does not show who, if anyone, maintained sewer connection with the waterway. Authorities are cited by appellee to the effect that it is the duty of a •municipality to maintain and keep its sewers in repair and in proper working order, to prevent the same from becoming a source of discomfort and injury to others. None of the cited authorities, however, go so far as to hold that a duty is imposed upon the .city to prevent private parties from creating a nuisance upon private property, or polluting water flowing in a natural watercourse over which the city has assumed no other control than follows from the location thereof within the corporate limits of said city, and which has not in some way been made a part of the sanitary sewerage system of such city, or used in connection therewith or as a part thereof, or into which the city has provided no outlet for street drainage not in the ordinary course of nature tributary thereto. The following concession appears in the abstract:
“It was conceded by defendant that the brick archway, which is referred to as the brick sewer in this case, was constructed by Mr. Stevens and his associates, owners of the land now included in Fairview Addition to Ottumwa, in*308 1890, in order to take care of the water in the natural watercourse, running through what is now Grand Avenue, and that the spring water referred to in the plaintiff’s evidence flowed through the brick sewer.”
The condition of the waterway appears to have been the same at the times complained of as when Fairview Addition was annexed to defendant city. The court submitted the case to the jury upon the theory that the defendant had negligently permitted residents along the waterway to connect private sewers therewith and to discharge offensive matter therein as above stated, and also permitted filthy water, soapsuds and other objectionable matter to be discharged into said waterway from the streets, through the catch basin on Second Street; but the allegations of plaintiff’s petition as to the latter were withdrawn by plaintiff.
In the absence of evidence from which it may be in-. ferred that the defendant has in some way adopted the waterway in question as a part of its sewer system, or as an outlet therefor, or by some affirmative act or permission given consent to residents residing in the vicinity thereof to construct and connect private drainage therewith, or has in some way contributed to the alleged nuisance complained of, it has violated no duty owed by it to plaintiff, and therefore is not liable for damages resulting from the alleged wrongful acts of residents upon the street or along the course of said waterway. Hines v. City of Nevada, 150 Iowa 620; Dillon on Municipal Corporations, Section 1736; Knostman & Peterson Furniture Company v. City of Davenport, 99 Iowa 589.
The defendant city owed no duty to plaintiff to prevent the water from the spring in question from becoming polluted and unfit for use, or to abate a nuisance to which it in no wise contributed, or for which it was not in some way responsible. The defendant, so far as the record before fis
At the close of plaintiff's testimony, the defendant moved the court to direct a verdict in its favor. The motion should have been sustained. The evidence wholly failed
For the reasons pointed out, the judgment of the lower court is — Reversed.