153 Iowa 504 | Iowa | 1911
Lead Opinion
The parties to this action are adjoining landowners; the plaintiff owning the S. W. *4 of section 3, and the defendant the S. E. % and the N. % of section 4. One A. O. Schultze owns the N. E. 14 of section 5 and the S. W. ]4 of section 33, which lies immediately north of the defendant’s N. W. % of section 4. In the early part of 1905, the parties entered into an agreement, whereby they were to construct -an open ditch across a part of the defendant’s land down to and across the quarter section owned by the plaintiff, and pursuant to this agreement they bought a ditching machine and constructed the ditch; the ditch being about eight feet wide at the top and about four feet deep. There was evidence tending to show that this ditch did not drain the defendant’s land-in a satisfactory manner, or as he had supposed it would; and the plaintiff alleges that upon mating this discovery an oral agreement was entered into between them, “by virtue of which this plaintiff agreed that the defendant might drain his land through tile connected with a certain ditch located through plaintiff’s said property, and
Dissenting Opinion
(dissenting). — Upon the whole record, I am unable to see any basis of liability in this case. In the first instance, the parties entered into an agreement about which there is no dispute, whereby they constructed an open ditch through the lands of both, and whereby each paid the expense of the construction upon his own premises. In the bottom of such ditch, defendant laid a tile drain and extended it one hundred feet beyond the partition line. It is now claimed by the plaintiff that this was done under an arrangement, whereby a tile drain was to be laid along the course of the ditch clear across plaintiff’s land. He also contends in his testimony that the expense of such tile drain was to be borne in “proportion” to the benefits, and that such proportion would require defendant to pay five-sixths of the cost and the plaintiff one-sixth thereof. The jury awarded plaintiff a verdict of $2,390, on the theory that this would he five-sixths of the cost of laying a twenty-two inch tile across plaintiff’s land. Judgment was entered on the verdict for such amount. And yet plaintiff has not constructed such tile drain; nor is he intending to do so; nor has he expended a dollar upon such enterprise. The position of the plaintiff in the case is
■ For the purpose of determining the “proportion” as between him and the defendant, he introduced evidence to the effect that he would receive only one-sixth of the benefit. Thereupon, on the measure of damage, he introduced evidence to the effect that the construction of the ditch would have benefited him five times such amount, and that the failure to construct the same therefore damaged him five times such amount. According to the finding of the jury, the defendant himself would have been benefited $2,390 by the construction of such tile drain across plaintiff’s land. Because of the failure to construct such drain, the defendant must not only necessarily lose such benefit, but he is required by the verdict to pay the amount thereof to the plaintiff. The incongruity of the case may be further illustrated by the suggestion that, if a public drain were now established along the same course' by statutory proceedings, the parties would be subjected to assessment of benefits therefor, and the defendant would be liablé to pay again five-sixths of such benefits. Plaintiff’s case is so inconsistent and incongruous as a whole that the result presents, to my mind, a clear case of miscarriage of justice.
I think the verdict ought to have been set aside.