67 Iowa 343 | Iowa | 1885
The plaintiff owns and resides upon a certain lot in the city of Council Bluffs. The injury complained of was caused by the overflow of such lot. The jflaintiff purchased and built upon the lot many years ago. It was on what might be called low ground, but it was a little higher than most of the land about it, which was generally not very far from level, and no great injury appears to have been suffered from' the overflow of water until the injuries complained of, which occurred in 1883 and 1884. During these years there were some very large rainfalls. A stream called' “Indian Creek,” which runs within about a block of plaintiff’s premises, overflowed its banks, and the water therefrom, and surface water flowing from other directions, overflowed the plaintiff’s lot and caused considerable damage. To what extent, if any, this would have happened if the surface of the' ground in that neighborhood and the creek had been left in their natural condition it is impossible to determine. A
The giving of this instruction is assigned as error. In our opinion the instruction cannot be sustained. There was no evidence that the city obstructed the water of Indian creek, so far as the channel was concerned. The only water of Indian creek which was obstructed by the defendant was the overflowed water abroad in the city. Such water is practically surface water. It occupies, temporarily, land used for other purposes. The right to divert or impede its flow is quite different from the right to divert or impede the flow of water in its channel. The Mississippi and Missouri rivers, in their great periodical rises, occupy for a few days, and sometimes longer, large tracts of valuable agricultural lands and portions of towns and cities. These overflows are more or less interfered with by the construction of levees, highways, railroads, buildings, etc. These structures sometimes deepen the overflow in other places, and sometimes retard or prevent a reflow. But it has never been held, so far as we are aware, that the same rule applies which is applicable to the obstruction of a natural stream in its channel. Overflowed water is an outlaw, tending to interfere with the legitimate use of the land which it overflows. In the natural progress of improvements it may be expected that it will become more and more restricted.
The right of a land-owner to demand a spread or unrestricted overflow for the purpose of lightening his own burden was expressly denied in Hoard v. City of Des Moines, 62 Iowa, 326. The plaintiff contends that he had a right to demand of the city protection even against surface water, and cites Cotes v. City of Davenport, 9 Iowa, 227, and Boss v.
The giving of this instruction is assigned as error. ■ "We
Upon such theory of the case it appears to us that the instruction was erroneous. If it had been the defendant’s duty to construct and maintain culverts sufficient to allow a spread of the overflowed water, the case should have been tried upon the theory that the defendant would, upon a judicial determination of its duty, proceed to put in and maintain the proper culverts; and if it did not, and other floods should occur, and more damage sho.uld be sustained by the plaintiff, the defendant would again be liable. We do not say that the case is one in which under any possible supposition the plaintiff can become entitled to maintain successive actions. We merely say that he might do so upon the-theory upon which the case was tried in part, and that the instruction was inharmonious with that theory and prej udicial.
.The judgment of the circuit court must be
Eevebsed.