150 Iowa 620 | Iowa | 1911
The plaintiff owns a lot in the defendant city, which he occupies and uses as a homestead. He alleges that for a considerable period the city has maintained a sewer passing through or adjacent to his said homestead which it has so negligently and improperly sustained as to discharge sewage and filth upon said premises, causing noisome and offensive odors to arise therefrom, and otherwise creating an unsanitary and dangerous condition, interfering 'with the safe and comfortable enjoyment of said homestead by the plaintiff and his family, and causing members of his family to become sick and suffer great discomfort, for all which he seeks a recovery of damages. The defendant denies the matters charged in the petition, and. pleads the statute of limitations.
The evidence shows that the city of Nevada is located upon and across a narrow slough or waterway extending from the northeast to the southwest and opening into a stream known as .Indian Creek near the west boundary of the plat. This depression furnishes the most feasible route for a course of drainage from the central business and resident section of the city, and prior to the laying of the sewer hereinafter mentioned it was used to a considerable
From time to time owners of various lots within the area accommodated by the sewer constructed lateral sewers or drains, and connected them with the main. These drains were used not alone for carrying off mere surface water or rainfall, but were utilized for the discharge of liquid or fluid waste of all kinds. In many instances connections were made with water-closets and urinals, perhaps not directly with the vaults, but through the medium of cesspools which first received the deposits, and from which the liquid contents were conducted to the sewer. Among the premises served by this drainage was a hotel, a laundry, the county courthouse, and other places where considerable amounts of sewage and unclean waste, liquid and otherwise, originate. The water pouring from the mouth of the main tile had the effect to wash out a basin or hole in the earth of considerable width and depth, and the sewage held or detained by this excavation naturally tended to become foul and offensive. For some time after the sewer was first constructed there was no serious complaint from persons owning property at or near the outlet, but later, as the connections increased in number, the matter discharged through the sewer became more and more offensive. The plaintiff and others in his neighborhood complained of the conditions to officers of the city, and, no remedy being effected, this action was instituted. While there is some dispute ns to the fact and extent of the stench and the actual cháracter of the sewage discharged from the main pipe into the open drain, there was ample testimony from which the jury could find the sub
II. But it is suggested, though it can hardly be urged with any confidence, that this was not a city sewer, but a sort of informal partnership affair to which the city contributed a share, but did not assume municipal authority or responsibility with respect to its care and maintenance. The action of the city officers at the inception of the project, the ordinance to which we have made reference, and all the circumstances connected with the enterprise, forbid any such conclusion.
Exceptions were saved by appellant to certain rulings of the court upon the introduction of evidence and to the instructions given the jury. The points thus raised are in most instances covered and disposed of by the conclusions we have already announced, and in none of the other rulings do we find any reversible error. The trial appears to have been fairly conducted, the evidence is sufficient to justify a recovery by plaintiff, and the amount allowed is not so clearly excessive as to call for interference by this court.
The judgment of the district court is affirmed.