57 Iowa 444 | Iowa | 1881
The evidence shows that the stream is of the character alleged in the answer, and that on the night of August 14th, 1878, an unusual rise in the stream tore down the north end, which was the rear of plaintiff’s building, and about twenty-five feet of the west side. The plaintiff’s building was erected on the east side of the stream, was nineteen feet wide from east to west, and fifty feet long from north to south, the west end extending seven inches upon the east side of Sycamore street. The evidence shows that before the erection of plaintiff’s building, the entire lot upon which it was erected was frequently covered with water. The plaintiff’s house was erected in 1869. Upon the part of the plaintiff, evidence was introduced tending to show that when he erected his building, it was five feet from the channel of the creek at the northwest corner; that the second year after the plaintiff’s building was erected, he placed a row of piling on a line with the east side of Second street bridge, extending along the west side of his building and beyond the north end, and boarded them up on the side next the stream with two inch plank; that soon thereafter the city put in a row of piling on the west side of the creek, opposite the plaintiff’s piling, and filled behind the piling with earth, thus narrowing the channel of the creek some twenty-five feet; that this piling was washed out in 1876 and the city then put in a double row of piling, which, with reference to the former piling, widened the channel of the creek about nine feet at the rear end, and about five feet at the Second street bridge; that this piling was taken out in 1878, at the time the plaintiff’s building was injured; that in 1875, a bridge across the stream in question at Third street, three hundred feet north of the plaintiff’s premises, was moved several feet to the east, and one Smalley put in rattlings on the east side of a lot which he owned on the west side of the creek
The twelfth paragraph of the court’s charge, to which reference is thus made, is as follows: “If you find the plaintiff entitled to recover, the measure of his damage will be suc-h sum as will repair the injury to his property, and compensate him for the immediate, necessary and actual loss sustained by being deprived of the use of his building, and injury to, or destruction of, his goods and chattels therein, caused by the wrongful, unlawful, or negligent acts of the defendant. It will be your duty to ascertain the condition of the plaintiff’s building just before the storm or flood complained of, and then ascertain the injury and damage caused bj^ said flood, and such injury and damage will be the measure of the plaintiff’s recovery so far as his building is concerned; and this sum, added to the injury and damage to personal property, and by being deprived of the use of said building, if any, as above stated, will be the amount of your verdict.
But if you find that the plaintiff, at a moderate expense and by the exercise of ordinary care and effort, could have protected his property from the alleged injury and damage, then he can recover only such sum as would have thus protected him from such injury and damage. Such expense must be moderate, and the care and effort required, such as persons of ordinary prudence and caution would exercise under similar circumstances. Looking at all the facts and circumstances, as shown by the evidence, and the situation of the plaintiff’s premises, it is for you to say, whether or not by such expenditure, and care, and effort, the plaintiff could have prevented the injury and damage for which he seeks to recover. If he could, his recovery will be limited to the sum which would have prevented said injury and damage; if he could not, he
Taking these two instructions together the meaning of the court is not clearly apparent. It is very clear from the fifth paragraph of the court’s charge, that the court in substance directed the jury, that, notwithstanding they should find from the evidence that the plaintiff erected his building wholly or partially in the bed of the creek, thereby obstructing the natural channel and causing the waters to wash against said building, and the building was insufficient in material and construction to stand such extraordinary floods as might reasonably have been anticipated, and was placed far below the established grade, and partly upon Sycamore street, and in the bed of the stream, thereby diverting its waters from their natural channel, and that the plaintiff could at a moderate expense and with reasonable effort have protected his property, and neglected to do so, and that these acts contributed directly to the plaintiff’s injury, still he should not be absolutely denied the right of recovery, but might recover in some qualified and limited sense as prescribed in the twelfth paragraph of the charge. This instruction is clearly erroneous. For if the facts, or any of them, enumerated in this paragraph of the charge, existed, and contributed directly to the plaintiff’s injury, then the injury was contributed to by the plaintiff’s own negligence, and under no circumstances and to no extent, can he recover. In Simpson v. The City of Keokuk, 34 Iowa, 568, it is said: “ If the plaintiffs, by the use of ordinary diligence and efforts, and at a moderate expense, might have prevented the damage, it seems necessarily to follow, that their negligence contributed to the injury, and this, upon a well settled rule, would defeat the plaintiff’s recovery.”
Coming now to a consideration of the 12th paragraph of the court’s charge, it is difficult to ascertain with certainty what limitation the court designed to place upon the 5th paragraph, and under what circumstances and to what extent the court
III. The court instructed the jury as follows:
The evidence shows that the stream in question meanders through the city of Muscatine. Its general course is south, but in places it runs almost directly west. It is not made the general boundary of property situated upon its sides, but the town plat is laid out without any reference to it. In some places lots extend far into the stream, in others they are situated almost wholly within it, and in other places the bed of the stream occupies almost the entire width of a street. It is evident that no lot owner bordering upon the edge of the Stream could have a qualified property in the soil to the thread of the stream, for his lot would always be bounded by another lot or by the edge of the street. It seems that the doctrine of riparian proprietorship cannot be applicable to the property thus situated. But, however this may be, it is evident from the entire case that the plaintiff does not base his right to recover upon the ground that he is a riparian proprietor. The plaintiff does not sue for the diversion of the water-course from his premises, nor for the deprivation of any interest in the stream. The ground of the plaintiff’s action is that by the wrongful act of the defendant, the water was thrown upon his premises to his damage. His right to maintain an action for such injury does not depend upon his being a riparian proprietor, and the plaintiff does not base his claim upon such ground, either in his petition or in the evidence. In applying to the case, under its circumstances, the doctrines of riparian proprietorship, the court erred.
IY. The court instructed the jury as follows:
Y. The defendant assigns as error the giving of the following instruction:
The evidence shows that the piling in the creek, which was there when the injury to the plaintiff’s property occurred, was placed there in 1876; that the Third street bridge was removed to the eastward, and its position changed in 1875, and that the vattlings were placed in the creek the same year. The injury to plaintiff’s property occurred in 1878, and this action was commenced in May, 1879. Whether the statute of limitations began to run at the time the obstructions complained of were placed in the creek, or at the time the injury occurred, the action was not barred when it was commenced. The court did not err, to the prejudice of the appellant, in giving this instruction. It is urged that the verdict is not supported by the evidence, and that it is contrary to the instructions given. In view of what has already been said, these objections need not be considered.
Reversed.