141 Iowa 328 | Iowa | 1908
The counties of Harrison and Pottawattamie, Iowa, having by appropriate actions of their respective boards of supervisors established a drainage district embracing lands in both jurisdictions, the contract for excavating the required ditch was let to the defendants. At the point involved in this controversy the course of the ditch is along the general course of a waterway known as “Willow creek,” but, as said channel is very crooked, the ditch in places cuts across its loops and bends, shortening the route of its flow. The general situation and the location of plaintiff’s land with reference to the ditch are made reasonably clear in the accompanying plat:
Plaintiff’s demand for a recovery in this action is based upon the theory that defendant in constructing the ditch and working in a southwesterly direction down the course of the stream cut through its banks at the point marked A on the plat, and in so doing negligently obstructed the channel, and after cutting through the south
As before stated, it appears without conflict that the defendants were not acting wrongfully or illegally in digging the ditch in question, but were doing it under the authority of law; and it further appears that at the time of the flood in question, and at the time the defendants cut the banks of Willow creek, the ditch was being dug by defendants on the line and substantially according to the plan adopted by the counties in providing for said ditch. Under such circumstances, the defendants had the right to cut the banks of Willow creek, and their act in so doing was not illegal nor negligent. But if when taking into account, so far as shown by the evidence, the flow of water in. the creek, and all that was known to the defendants, or ought to have been known to them in the exercise of reasonable care upon their part, as to what floods were likely to occur along said stream and ditch before they would again reach said'creek at a point lower down in the construction of said ditch, it appears from the evidence that reasonable prudence would have dictated*332 when they cut the bank of the creek and crossed same with the ditch, that they should have closed up the opening thus made in the bank of the creek with a dam, or should have provided some outlet ahead of tlieir dredge boat to carry the flood waters likely .to come down the ditch, and thereby prevent same from flooding the lands adjoining or near the ditch, then it was their duty to do so, and if, under such circumstances, it appears that they failed to build such dam or to provide such outlet, such failure on their part would constitute negligence.
The trial court in the ease at bar correctly held as a matter of law that the defendants had the. lawful right to excavate • the ditch across the course of the stream, and that at the time of the injury complained of they were doing said work in substantial accordance with the authorized plan. There was also no error in stating that, in performing their said contract, the defendants were bound to exercise reasonable care to avoid the unnecessary flooding of the adjacent lands, but we hold that no case was made by the plaintiff which would justify the jury in charging defendant with negligence in failing to intercept and prevent such flow by damming the ditch behind the dredge, or by constructing some temporary ditch or trench
Other alleged errors are not likely to arise on a retrial, and we shall not discuss them.
For the reasons stated, a new trial must be ordered. The judgment of the district court is therefore reversed.