106 Iowa 543 | Iowa | 1898
The evidence tends to establish the following facts: The plaintiff is the owner of one entire lot and parts of four other lots, which are situated about 1,200 feet west of the Cedar river. They are between Third and Fourth streets, and front southward on E avenue, which extends from the river westward, and is commonly known as the “Vinton Ditch.” It was, at one time, a part of the Vinton road, but about the year 1864 it commenced to wash out from a point a considerable distance west of the river, and in the spring of the year 1868 the ditch thus made reached the river.' Since that time it has been the outlet for a large quantity of surface water, and in front of the property of the plaintiff it is a little more than sixty feet in width, occupying nearly the entire street at that point, and is there about seven feet in depth.
The petition contains two counts. In the first the plaintiff states that the defendant has negligently caused and permitted large volumes of surface-water to be diverted from their natural course and drained into E avenue, causing the part of the avenue next to the plaintiff’s property to be washed away until the avenue has become impassable, and causing a portion of his property to be undermined and carried away, to his damage in the sum of one thousand dollars. The second count includes the averments of the first count, and states, in addition, that the defendant has permitted the accumulation of stagnant water, garbage, the carcasses of animals, and other filth by the side of and near to the property described, until the accumulations have become green and putrid, emitting odors and poisonous gases, which have endangered the health and life of the plaintiff and his family, deprived him of the free, quiet, and peaceable possession of the property, and greatly injured and depreciated its rental value, and that plaintiff has been compelled to fill his lots where they were washed out at a great expense, to his damage in the sum of one thousand dollar.