145 Iowa 81 | Iowa | 1909
The plaintiff alleges that he is super
The argument of defendant presents at this point questions which were not raised by this demurrer." The real point of the demurrer was that the township trustees were necessary parties plaintiff, and that the plaintiff was only the agent of such trustee. It is clear to us that, the demurrer was properly overruled. "While the duty of appointing the superintendent is placed by the statute upon the trustees, as well as the duty of supervision, nevertheless the statute itself fixes the duties of such superintendent when appointed, and he is liable under his official bonds for the performance of his official duties. The broad question whether a road superintendent as such may maintain an action in his representative capacity, in the absence of any statutory provision conferring such authority upon him, is one upon which we withhold judgment at the present time. "Under the facts as they are claimed to be on behalf of the plaintiff in this case, we think he has an undoubted right to maintain this action in his individual capacity. Assuming the facts to be as claimed by the plaintiff, defendant was about to erect and cause a public nuisance upon the highway. If has always been held by this court that equity will enjoin a public nuisance at the suit of a private plaintiff if such works a special injury to such plaintiff distinct from thé injury suffered by the general public. Hougham v. Harvey, 33 Iowa, 203 ; Ingram v. Railroad Co., 38 Iowa, 669. The statute imposes upon a road superintendent the duty of maintaining the highways in his district in proper repair, and charges him with personal liability for damages which may result to individuals for failure to perform such duty. Code, sections 1551-1560. Taking the case as made by the plain
There is no question under the evidence but that defendant’s dike is laid across the natural course of the water. Within a quarter of a mile west of this dike is a deep depression, through which the water runs toward the Nishnabotna River. The most that the defendant can claim is that in high water some of it will flow north. Much the greater part of it, however, has always- passed over defendant’s, land. The Maxwells have ceased to maintain any
These and some other slight inaccuracies do not, in our judgment, affect the result.
The decree entered below must be affirmed.