170 Iowa 223 | Iowa | 1914
' Plaintiff Watt brought the former action on May 22, 1911. He averred that he was owner of land abutting upon a stream and that the defendants were owners of a mill dam maintained across such stream. His petition contained the following averment:
“That on the 20th day of May, 1911, the defendants having theretofore maintained a dam across the bed of said river that would in no manner, without raising the height thereof, interfere with plaintiff’s lands, and below plaintiff’s said lands, threaten to, and are now raising the height of the said dam, with the intention of keeping the same up and have and are thereby obstructing the flow of the water of said river, and thereby raise and threaten to raise it in the bed of the river, and thereby backing it upon the said farm and timber lands of plaintiff, to wit: To the height of two feet, thereby impeding and checking the natural flow of the water therefrom and causing the water so backed up and overflowing, to drown out and kill plaintiff’s timber and crops, and thereby diminishing the value of plaintiff’s said property to the damage of fifteen hundred dollars. . . . Wherefore, plaintiff demands judgment for damages in the sum of fifteen hundred dollars, and asks that a temporary writ of injunction do now issue restraining the said defendants from raising the height and maintaining the height of said dam so as to interfere with or overflow the said lands of plaintiff, and that upon the final hearing of this cause the said injunction be made perpetual, and for such other and further relief as ■ may in the mind of the court be deemed equitable.”
The dam extends from A to B. To the left of A is the stone abutment. At the right of the dam between B and C is the fishway extending to the top of the dam. The dam is built of solid concrete, except the space between B, X, T, and Z. This space is built up with boards to the' line BX. The purpose of this construction is to protect the dam as a whole against the danger of being carried out by high
“Wherefore, it is ordered, adjudged, and decreed that the defendants, and each of them, their servants, agents, and employees, be perpetually enjoined and restrained’ . . . from maintaining any dam or artificial obstruction other than the original dam . . . without flush-boards.”
The foregoing quotation, is literal as far as it goes. But it is wholly misleading because it stops in the .midst of a sentence. The entire sentence in the decree from which the foregoing is taken is as follows:
“Wherefore it is ordered, adjudged and decreed that the defendants and each of them, their servants, agents, and employees, .be perpetually enjoined and restrained from maintaining, . . . any dam or artificial obstruction, other than the dam originally constructed for mill purposes without*228 flush-boards or other means of obstruction whereby the flow of the water in said river shall be increased or raised in height, or to cause the water of said river to be backed upon, or overflow the land of plaintiff in any manner other, or different than would be caused by said dam as originally constructed. ’ ’
The difference between the two quotations indicates, the difference between the parties in their contention as- to the effect of the decree. The defendants in the former action contend that they were enjoined only from increasing the height of the dam above its original height. We quote from the opinion the following:' “We now come to consider the issue tendered by the plaintiff in which he seeks to restrain the defendants from a threatened wrong. . . . No complaint is made whatever of the dam as it existed there for many years prior to this 20th of May, 1911, and no relief is asked against the maintenance of the dam as it then existed. The plaintiff has invoked the powers of the law to restrain the defendant from in any way raising the height of the dam to the injury of the plaintiff. ...”
‘ ‘ His right to maintain the dam as originally constructed is not called in question. It appears fairly well established by the evidence that to permit the' defendant to raise the dam, as threatened, will have the effect of interfering with the flow of the water from plaintiff’s land to the plaintiff’s injury, and we think to this extent the' decree entered by the court should be modified so as to grant an injunction against the defendants prohibiting them from raising the dam above the point at which it was maintained, to wit, to the 14-foot head. ’ ’
The petition in the former case made no mention of flush-boards. No complaint was made either in pleading or evidence of the use of flush-boards as distinguished from any other me'ans of raising the height of the dam. It was undisputed on the former trial that the owners of the dam were entitled to a 14-foot head. The same is - undisputed in this
Watt’s evidence that no flush-boards were used in the original construction, and that in his opinion the original construction was lower than the present height, was quite beside the mark. He himself testified that the flush-boards had been used for years prior to his former suit. His petition in such former suit, as above quoted, concedes that the dam was maintained at a proper height prior to May 20, 1911, which was two days before the beginning of his suit.
Construing the decree in its entirety and in the light of the pleadings and the opinion of this court pursuant to which it was entered, we hold that it forbade the defendants therein from increasing the height of their dam above its original height by flush-boards or by any other means whatsoever. As long as the defendants refrain from increasing
Other questions argued need not be considered. The order entered below adjudging the petitioners herein guilty of contempt for the violation of the injunction must be annulled, and it is so ordered. — Annulled.