discussing an allegation that a city created a nuisance in the construction and maintenance of a sewer and noting that governmental immunity does not apply where the governmental agency created and maintained the nuisance
How later courts described this case
- discussing an allegation that a city created a nuisance in the construction and maintenance of a sewer and noting that governmental immunity does not apply where the governmental agency created and maintained the nuisance
- “To constitute a nuisance there must be a degree of danger, likely to result in damage, inherent in the thing itself, beyond that arising from mere failure to exercise ordinary care.”
- “The maintenance of a nuisance is not a governmental function.”
- discussing “inherent danger” in a nuisance action
Written by the judges who cited it.
The opinion
Larson, J.
I must respectfully dissent. It is very clear to me, and the evidence establishes without dispute, that the city did create the complained-of blocking of surface water with inadequate street improvements. The majority so concedes. When the earth work blocked the natural flow of surface waters after the May 8,1962, heavy rain, plaintiff’s lot became a pond. Water flowed in his basement windows in such volume that the sanitary sewer could not carry it away. Under this situation m> shutoff apparatus in the sanitary sewer outlet would be effective. The condition was relieved only when the city opened ditches across the street east of plaintiff’s premises. I think these admitted facts compel a finding of liability, and that reasonable minds could not differ on the inferences or conclusions that may be drawn from that evidence. The issue as to that part of this cause was not a fact question for the court acting as a jury, and we are not bound thereby. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1115 , 125 N.W.2d 251 , and citations. Indeed, this is the exceptional case. Thus, as a matter of law I would find liability for this damage and would allow recovery to the extent proven by -the evidence.
As to the claim for damages due to the sanitary sewer backup resulting from the June 10, 1962, rain, I concur with the majority’s holding. As to that claim the trial court’s finding must be upheld. There the evidence does not support a recovery, for it does- not appear the city was the creator of the condition which overburdened the sanitary sewer at that time and place.
However, I feel these were separate torts and that liability for the damages resulting from the May 8 rain was. separately established as a matter of law-, and upon that claim plaintiff was entitled to* recover.