69 Iowa 310 | Iowa | 1886
II. Applicable to plaintiff’s claim upon the pleadings and facts just stated, the circuit court gave to the jury instructions in the following language:
“ Seventh. If, prior to the time of the alleged' injury, the premises.of the plaintiff were subject to temporary overflow from the high or - back waters in Indian creek, and there were culverts or openings in the street of the defendant at or near the plaintiff’s premises, through which such waters flowed off the plaintiff’s premises, and the defendant, in making improvements-upon such street, or in order to improve
“ Eighth. And if you find the foregoing facts to be established by the evidence, and further, find that the defendant failed to make provisions, by culverts, or otherwise, for such water to escape from the plaintiff’s premises, and that, by reason of such failure, such water accumulated and remained upon the plaintiffs premises, and thereby damaged the same, the plaintiff will be entitled to recover the amount of damages so caused.”
III. These instructions authorize the jury to find for plaintiff", notwithstanding his lots were below the established grade of the city. The doctrine upon which they are based, if recognized by this court, would impose upon cities the duty of providing for the drainage of all lots within their borders which are below grade, and are exposed to overflow of neighboring streams. One of the objects of an established grade is to prescribe a line for the surface of the streets which shall be above the limit of the overflow of the waters found within the cities. There rests upon them no obligation to raise the lots of the Citizen to the line of the grade of the streets. They are not, therefore, charged with the duty of keeping such lots free from overflow water. The lot-owners may escape annoyance or loss from overflow by filling their lots to grade, or, if it may be done, by constructing sewers and sluices to.conduct away the water flowing upon their property. The instructions, in that they hold defendant liable, although plaintiff’s lots wrere below grade, are erroneous. See Morris v. City of Council Bluffs, 67 Iowa, 343; Hoard v. City of Dos Moines, 62 Id., 326.
For the error in the instruction pointed out, the judgment of the circuit court is
Reversed.