50 Iowa 197 | Iowa | 1878
L. W. Babbitt, who was a member of the city council when the gas-pipe was laid, testified that the matter of putting the gas-pipe across the sewer was discussed in the council before and after the pipe was laid.
The plaintiff testified that the year after the gas-pipe was put in the culvert failed to carry off the water, and that he then notified the members of the city council, and asked them to do something about it.
It is urged in the argument that this evidence should not have been admitted, because the city could only give consent
In view of the fact, as found by the court, that the sewer was of sufficient capacity when it was constructed to carry off the water without injury to the adjoining premises, and that .after it was obstructed by the gas-pipe it was not sufficient, of which the city had notice, it is evident that if the city was not culpably negligent in permitting the obstruction in the first instance, there was negligence in allowing it to remain.
the witnesses who were interrogated upon the subject state that in that locality many severe rain storms have occurred. It is conceded by counsel for the appellant that the evidence shows that one storm in 1858 and another in 1869 were about equal in point of force and violence to that which occasioned the injury. The rule is that it is the duty of the city to provide water ways sufficient to carry off the water that might-reasonably be expected to accumulate, judging from such floods as had previously occurred. That the finding in this case is correct under this rule see Damour v. Lyons City, supra, and Mayor v. Bailey, 2 Denio, 433.
V. Finally, we may say that a careful examination of the testimony of all the witnesses has led us to the conclusion that all of the findings of fact find sufficient support in the evidence.
Affirmed.