Citation Numbers: 184 Iowa 1261
Judges: Gaynor, Preston, Stevens, Weaver
Filed Date: 12/14/1918
Status: Precedential
Modified Date: 7/24/2022
The plaintiff owns a farm in Pottawattamie County. The land is crossed by two -lines of railway, the Chicago, Rock Island & Pacific, and the Chicago, Milwaukee & St. Paul, running substantially north and south. These lines are nearly parallel, and between them lies what is spoken of in the record as “Fisher Field,” owned by the plaintiff. It is for alleged damage to this land that a recovery is asked. The Milwaukee right of way extends along near the east line of plaintiff’s property. Upon the east side of the right of way, the track grade of which is elevated several feet above the general level of the land, runs Mosquito Creek, flowing in a southerly direction. In a. state of nature, Mosquito Creek ran farther west into Fisher Field, where it deflected to the east of south, and passed out near the plaintiff’s southeast corner. A smaller stream, known as Fisher Creek, came in from the west, passing under the track of the Rock Island road, crossing the south part of Fisher Field, and into Mosquito Creek, near the southeast
In his petition, after describing the general surface of the land in this vicinity, plaintiff charges that the grade of defendant’s road operates as an effectual barrier against the escape of floodwater to the east, and that no openings are provided therein to aid the draininge; that the drainage through Fisher Creek has been interrupted or hindered by obstructions placed in said creek by the defendant, thereby causing it “to fill up and to grow up to willows and weeds,” thus checking the flow and causing the deposit which has filled up the channel. It also charges that the bridge or opening provided by defendant in its grade for the passage of water from Fisher Creek and Fisher Field is inadequate, causing the water to dam up and set back over the field, and that, for at least three successive years, beginning with the year 1918, the flood and overflow of water so caused by the negligence of defendants have occasioned material injury to plaintiff’s property.
That the old channel of Mosquito Creek, into which the waters of Fisher Creek naturally emptied, has beeome filled, as hereinbefore described, and that the result has been to set the water back over the field, or at least to retard its escape, is very clear; but the trouble with plaintiff’s action for the recovery of damages arises when we attempt to trace the injury of which he complains to any wrongful act o,r neglect on the part of the defendant. It is not charged that the change in the channel of Mosquito Creek from the west to the east side of defendant’s grade was wrongful, or without the consent of plaintiff or his grantors; and assuming, as we must, that it was rightfully done, then, in the absence of any showing of negligence in the execution or maintenance of such work, no right of action would accrue to plaintiff on account of the natural or necessary effect, if any, of snch change on the drainage of his land. While it is
The further allegation of the petition, that the outlet or waterway afforded by the bridge at the southeast was inadequate, is also without support. The bridge is shown by the testimony of plaintiff’s own witnesses to be about 100 feet in length, resting upon piles, so set as to make 6 clear spans, of 14 or 16 feet each, and 6 feet or more above the stream — manifestly, an ample escape for even far more water than could possibly come to it through the culverts in the Eock Island grade, and from the restricted area of Fisher Field. We find no evidence that defendant or its émployees or agents placed or deposited an.y obstructions in Fisher Creek which served to dam or set back the waters naturally escaping in that direction. There is evidence to the effect that, in times of flood, more or less floating rubbish was seen to accumulate against the piles in Mosquito Creek bridge, and that the flood waters in Mosquito Creek would set back up the course of Fisher Creek. It is a matter of
“I was at the Milwaukee, the next morning after the*1267 flood. The water west of the bridge and not under the bridge for some distance was standing still. Just south of the bridge, or east, it was the same way.”
In other words, the water was not dammed by the bridge. To a certain degree, the greater volume of water in the main stream acted as a dam, or barrier, to the discharge of the small stream, while the height and weight of water in the main stream would necessarily set up a back flow in the smaller, even in the absence of the bridge below the junction. The witnesses, so far as they speak upon the subject, seem to agree that the slow filling of Fisher Creek channel began many years ago, at the junction of that creek with the old Mosquito Creek channel, in Fisher Field, 50 feet or more west of Mosquito Creek as it now runs. The deposit has accumulated, until this point is the highest between the Rock Island grade and the bridge, and the channel is no longer visible. Indeed, the level of the east part of the field generally is now at an elevation higher than a considerable area on the west side, next to the Rock Island; so that, when flooded by overflow or by rains, the water settling there will not all run off. The fair conclusion seems to be that this point where the first and heaviest deposit has been made is at the point where the high water setting back from Mosquito Creek meets the flow moving down Fisher Creek, and comes to a comparative standstill. The gradual growth of this accumulation has served, in some degree, to check the flow and counterflow of the waters, and to hasten the deposits oh either side, until the conditions and changes already described have come to pass. So far as we can see from the record, all these changes are fully accounted for as having been produced or brought about by operation of the immutable laws of nature, over which' the defendant has no control, and for the results of which it is charged with no responsibility. Water at large will seek its level, without regard to the ownership of property which may stand in
The trial court did not err in directing a verdict, and the judgment thereon is sustained. — Affirmed.