Hoard v. City of Des Moines

Rothrock, J.

It is not claimed that the city obstructed a natural stream by the erection of the levee. The most that can be claimed from the evidence is that, after the levee was constructed, the water in time of overflow was deeper on plaintiff’s lots, because by the levee it was not permitted to overflow that part of the city east of the levee, and pass off in that direction. The evidence does not show that the levee could have been constructed upon the bank of the river, or between plaintiff’s lots and the river. On the contrary, it is shown! beyond question that the river bank is largely composed of sand, which for years has been cut away by the -action of the water, so that, at the time the levee was built, some of the lots on the river bank had been partly washed away. At the time the levee was constructed, it could not have been located on the river bank without being built on private property, at least in part. The plaintiff complains that the defendant was negligent in constructing the levee on the line as located, but there is no evidence showing that it could have been constructed between the plaintiff’s lots and the river. It was the undoubted right of the city to protect as much of its territory from overflow as could be protected. Every owner of land has a right to protect himself from overflow by water from a river, even though, by excluding the water from his own premises, he deepens it between his land and the river. It appears to us that what the plaintiff claims is, that he has the right to plant himself on low ground next to a river, and insist that overflow water shall pass over his land on to the land of other persons. That he has no such right requires neither argument nor authority to demonstrate.

Affirmed.