186 Iowa 524 | Iowa | 1918
At the suit of property owners affected by the dam, a writ of injunction, restraining plaintiffs from overflowing their lands, had previously been issued. One F. D. Gillilan was the owner of the land in question, at the time of the completion of the dam, and Chester G. Bliss, appellant herein, is his grantee, to whom the land was conveyed before the petition was filed, in which he is alleged to be the owner. The petition is in the usual form, and sets out the names of the owners, and the description of the various tracts of land affected by the dam, and asks the appointment
I. The case was tried in the court below, and is argued by appellee in this court, upon the theory that the dam, which is constructed of concrete, is permanent in its nature, character, and purpose, and that whatever damages resulted to the land in question on account thereof are permanent, and accrued to Gillilan, the owner thereof, immediately upon the completion of the dam; that the nuisance created is permanent, and will continue indefinitely, and without probable or prospective change. This was the theory upon which evidence was received of the alleged oral waiver and settlement of damages to the land, and a verdict in plaintiffs’ favor directed by the court.
While there may be an apparent lack of harmony in our decisions as to what constitutes a permanent nuisance, and just when all damages to real estate resulting therefrom must be recovered in one action, it is doubtless due largely to the great variety of structures and nuisances considered by the court in the various cases, and the possible failure to make clear the distinction between the facts in the different cases. In City of Ottumwa v. Nicholson, 161
“As a general rule, if a nuisance is permanent in character, is intended to remain in the condition in which it was erected until destroyed by the elements, and the damages are to the land itself, especially where the erection is for a public or semi-public purpose, the damage is treated as original, to be recovered in one action, and not continuous in character.”
The dimensions of the dam in question do not appear in the record, but it does appear that it is constructed of concrete, and its use and purpose to furnish power for an electric light plant leave no doubt that it will be permanently maintained, in its present form and height. The application for a license to construct and maintain a dam, and to have the damages appraised, is based upon the theory that the improvement designed is to be permanent, and the damages to real estate affected will be estimated and determined upon that basis. The measure of damages in such cases is the difference- in the market value of the land immediately before and immediately after the dam was constructed.
There is also evidence that some part of the land was overflowed before appellant acquired title thereto. Under such circumstances, a completed cause of action arose in favor of appellant’s grantor, which did not pass to him by the warranty deed. Peden v. Chicago, R. I. & P. R. Co., 73 Iowa 328; Irvine v. City, supra. No claim is made by appellant that Gillilan assigned his cause of action to him.
Counsel for appellant made timely objection to the introduction of the above evidence, upon the grounds that’ plaintiffs had alleged in their petition that appellant was the owner of the land, had asked the appraisal of damages thereto by a sheriff’s jury, and were, therefore, estopped from claiming an easement or interest therein adverse to appellant; that the damages should be determined as of the date of the award, and not at the time the nuisance was created; that the alleged oral agreement, if entered into, was for an interest in real estate, within the statute of frauds, and, therefore, parol evidence was inadmissible to prove the same.
As stated, the dam was constructed before proceedings were instituted for a license to do so, and a cause of action for damages had ripened in Gillilan before he conveyed the land to. appellant, and before this proceeding was begun. It is true that it was alleged in plaintiffs’ petition that appellant was the owner of the tract in question, describing it; but this was in connection with similar allegations as to numerous other tracts owned by the remaining defend
But it is strongly insisted by counsel for appellant that the damages must be assessed as of the time of the taking. This is, no doubt, ordinarily true. Hartshorn v. B., C. R. & N. R. Co., 52 Iowa 613; Noble v. Des Moines & St. L. R. Co., 61 Iowa 637; Hayes v. Chicago, M. & St. P. R. Co., 64 Iowa 753. And, ordinarily, in proceedings under the law of eminent domain, damages are appraised, and must be paid before the taking; but, in this case, the dam was constructed, and the right to claim damages to the land accrued to appellant’s grantor. He had a perfect right to waive his claim therefor, to accept a nominal sum, or employment, in full satisfaction and settlement thereof, and appellant would have no cause of complaint. Appellant purchased the land after the dam was constructed, and, appellees contend, with full notice thereof, and after a cause of action therefor had accrued in favor of Gillilan. It was certainly, therefore, competent for plaintiffs to show, by oral evidence, that Gillilan had waived the same, or that a settlement and adjustment had been made thereof.
The only issue triable upon this appeal was the matter of damages to appellant’s land. The question whether a license should be granted was triable to the court only, and without reference to this issue. The permission granted by the court, under the statute, should be to erect and maintain a dam at a given place, and at a specified height. The proceeding is somewhat different from the ordinary proceeding to condemn a right of way for the erection of
It is also strongly urged by counsel for appellant that the evidence relating to the alleged waiver and settlement of damages is not conclusive, and that the court committed error in excluding a letter written by Gillilan to appellant, denying that he had sold or signed a written contract, or fixed a price on the land covered by overflow from the dam. Conceding that the court should have admitted the letter in evidence, it would not have created a material conflict therein. No claim was made that he had done any of the things denied in the létter. The evidence offered by appellees was to show a waiver and settlement; and, while it was not entirely harmonious, it is not controverted, and the parties to the transaction agree that some adjustment was made. The testimony of other witnesses tended to corroborate their version of the matter. No question was presented for the jury. ' A finding in favor of appellant upon this point by the jury could not have been sustained.
III. It does not appear from the evidence offered that a license was sought or granted to increase the height of the dam above that which existed at the time appellant purchased the land, or that any change was permitted therein, or that additional water will be cast upon the land, or that same will be damaged in a manner different from or to a greater extent than it was prior to the conveyance thereof to appellant. The evidence offered upon the measure of
We discover no error in the record, and the judgment of the court is — Affirmed.