41 Iowa 389 | Iowa | 1875
Plaintiffs are the owners of a lot or tract of land situate upon and bounded by Muscatine slough, an arm of the Mississippi river. Upon their property, and near the slough, is a slaughter and pork house, which wa's built and used by the prior owners of the land. -It has also been used by plaintiffs. The defendant owns a lot situated upon the same slough which lies between the plaintiffs’ property and the Mississippi river, and upon it is erected and in operation a steam saw mill. These facts appear in the petition, which further shows that defendant, some years before the commencement of this action, began to fill up the slough by depositing therein large quantities of refuse from his mill and continued so to do until a large extent of the slough in front of defendant’s premises has been filled up whereby the flow of the water from the river has been, to a great extent, cut off and impeded. Another count of the petition avers that defendant wrongfully entered and trespassed upon plaintiffs’ premises by filling up the slough in front of their lot, and another charges that defendant unlawfully constructed a boom at the source of the slough, whereby the flow of water into the slough is diverted and diminished, and plaintiffs are deprived of the use and benefit thereof.
The answer of the defendant denies the allegations of the petition, and further alleges that in 1844, by authority of the
I. An instruction in the following language was given to the jury: “ 3. The said property and premises of both plaintiff's and defendant almt upon and extend to the center line of said stream or water-course known as Muscatine slough; and since the purchase of plaintiffs’ premises, August 18, 1870, they have been entitled to the use and enjoyment of said stream or body of water in the condition it then was, as to quantity and natural flow of current, subject only to changes from natural causes and reasonable use of the same by other riparian owners; and neither party, plaintiffs nor defendant, had a right to change the natural course, flow or current of said stream or water course, or diminish the quantity thereof to the injury of the other party, unless the injury results from reasonable use of the water, as above stated; but both parties had a right to use said water in a reasonable manner and to a reasonable extent for the purpose of their business.”
This instruction is made the ground of the first exception urged by defendant. Counsel insist that it is not applicable to the facts before the jury because the slough, on account the dam erected in 1844, and the construction of the railroad at its source, destroyed its character as a water course, and the doctrines controling the rights of riparian owners are, therefore, not the law of this case.
The fact stated in the first sentence of the instruction,
We reach the conclusion that the obstruction to the current of the slough did not take away the the rights of the plaintiff
But defendant argues that the filling deposited, by him in the slough may he removed by plaintiffs and the. advantages of the water will thus be returned to them. But when permanent injuries of this kind are done to real property the owner will not he required to restore it to its former condition. The wrong-doer cannot impose a burden of this kind upon the injured party and thus escape liability for the full amount of the injury done. Besides it may he that if the property can be restored to its original condition, the expense thereof entered into the estimate of its depreciated value.
The. rule of the instruction commends itself to us as awarding just compensation to plaintiffs, and its application results in tbe final settlement of the controversy between the parties.
The foregoing discussion disposes of all questions presented by counsel. We find no ground upon which the judgment of the Circuit Court can be disturbed; it is therefore
Aefiemed.