145 Iowa 457 | Iowa | 1909
Linn Creek flows in a north-easterly direction into the Iowa River. Lot two, belonging to plaintiffs, lies north of Main Street, and extends to the creek on the north and west. The Chicago & Great Western Railroad runs in an easterly and westerly direction immediately south of Main Street, and from a point immediately south of plaintiffs’ east line curves southwesterly over Twelfth Avenue, which extends north and south, and intersects Main Street. It passes over Linn Creek some eight or ten rods west of said avenue on trestle work two hundred and eighty-three feet long. The grade of the railroad is .considerably above the high-water mark. In the summer of 1906 the city of Marshalltown 'graded Twelfth Avenue from the railroad south to Nevada Street, a distance of one thousand three hundred feet and seven hundred feet on Nevada Street. This grade was twenty feet wide, and varied from two and one-half to four feet above the natural surface. The top was two feet above the high-water mark of the creek. The evidence tended to show that there was a swale or depression extending from the southwest over said avenue, before being graded, about halfway between the railway and Nevada Street, in an easterly direction for some distance, and then part of the water flowing through it passed northeasterly through a culvert in the railway embankment and the rest to the southwest. No culverts or waterways were left in the grade. Prior to its construction, when the creek overflowed,