145 Iowa 222 | Iowa | 1909
The plaintiff is the owner of lands in sections 3, 9 and 10 in a certain township. The lands abut upon the right of way of the defendant railway company. He brought his action for damages in two counts. In the first he claimed damages for injury to his pasture, and for hay and growing corn destroyed by the flooding of his lands in June, 1906. In the second count he claimed damages as assignee of defendant O’Connell for the destruction of growing corn by the same flood. The railway of the ■ defendant compány runs in a general northeasterly and southwesterly direction through ■ sections 3, 9
The plaintiff charged that his land was flooded as a .result of heavy rain in June, 1906, and that the direct cause of such flooding was the failure of the railway company- to properly open the ditch within its right of way. It did not charge the railway company with any fault in maintaining its grade or any failure to maintain proper culverts. The defense was a general denial and a plea of- settlement.
The settlement was based upon the fact that Bones acquired his land in sections 3 and 10 from O’Connell; that while O’Connell was the owner of the same he brought an action against the railway company for damages for
The court below found that if the plaintiff and O’Connell suffered any damage it was fully covered by the stipulations of the prior settlement between O’Connell and defendant. The decree also authorized the defendant to construct and maintain suitable culverts and openings under its track near the point where Caster Creek discharges its. flood waters upon the right of way of the railway company in section 10, and to cast such flood water upon the premises of O’Connell on the east side of the railway track where the same may flow from such culvert and openings. The necessary effect of the decree of the court was to find that the plaintiff was not entitled to any recovery for the flooding of land in section 9. The testimony shows that the -land involved in this proceeding is low, level land lying between Mosquito Creek and the nearby hills out of which Caster Creek flows. This creek seem-s to be a mere con
We find no proper ground for interfering with the decree of the court below. It is accordingly affirmed.