147 Iowa 580 | Iowa | 1910
The ease is peculiar, in that no cause of action was stated in the petition. In the first count plaintiff claimed damages “by reason of overflow of surface water overflowing his lots . , . by reason of the- stopping of the natural course of the water flow at East Thirtieth and North streets, city of Des Moines.” In the second count the claim is for damages to the lots of B. F. Plummer, alleged to have been assigned to plaintiff, and “by reason of damages sustained” by Plummer “by reason of the overflow of surface water on his property, . . . causing the interference and hindrance of the natural water course. Said dam and stoppage of the natural flow of water is in East Thirtieth and North streets.” The third count is based on a claim of- Ed Hanson alleged to have been assigned to plaintiff, and in the language of the second
II. In 1901 the defendant extended its track on Thirtieth street in Des Moines north to North street, and then in an easterly direction on it. Another track was put in two or three years later. At the intersection of North and Thirtieth streets there had been a bridge with opening beneath about ten feet wide by six feet deep. A ditch eight feet wide and four feet deep extended from the north or northwest beneath this bridge, and through it the surface water ordinarily flowed off. As we understand the record, this bridge was removed by defendant and two twenty-four inch tiles laid in the ditch through the street, and it filled. Several witnesses say that, in addition to this, there was a small box passageway for the water. As to whether defendant also raised the physical grade is in dispute; some witnesses testifying that it did raise the grade of North street about two feet, and that the city raised that on Thirtieth street about the same, while others say that in laying the tracks no change in grade was effected. The evidence is also in conflict as to whether there was a waterway or course at that place. Suffice it to say that the evidence was such that the jury might have found there to have been a waterway such as that defendant might not have lawfully obstructed, and that 'it in laying its track raised the street grade.
The evidence also was in conflict as to whether the tile afforded an adequate outlet for water such as might reasonably be anticipated to accumulate for passage at - that place. The assumption on the part of the appellant that the city raised the grade of North street, if it was changed in laying, the tracks, and that tiles were laid under the supervision of the city, is not borne out by the record.
V. Exception is taken to the instruction on measure of damages, and it may be that the rule applied to the claim of plaintiff was not quite consistent'with that applied to the claim of Plummer. Aside from this, the law as laid down was well calculated to the ascertainment of the damages suffered. See Tretter v. Railway, 126 N. W. 339; McMahon v. Dubuque, 107 Iowa, 63, 77 N. W. 517, 70 Am. St. Rep. 143.
Because of the errors pointed out, the judgment is reversed.