The Oskaloosa herald. (Oskaloosa, Mahaska County, Iowa) 1885-1919, 1908-11-05
DECISION IN CASE
OF FEHD VS. CITY
SUPREME COURT RULING ON A
RECENT LAW SUIT.
ASKED DAMAGES FOR SEWER
Judge Deemer Wrote Opinion Which
is Exhaustive and Conclusive
Expense of Carrying Case
Through Courts.

The opinion of Judge Deemer on
the damage suit of Andrew Fehd, APP
|pellee, VS.. City of Oskaloosa, appel
liant, the findings of the district court
in which have just been reversed in
the Supreme Court of Iowa, has been
received by the attorneys. The ac-
ton was brought to recover damages
for nuisance created by the city in
Idischarging its sewage in proximity to
the plaintiffs land Trial was had
before jury and a verdict was found
in favor Of the plaintiff Fehd and judg-
ment was entered against the defend
ant city, whereupon the defendant
filled motion for new trial and up
on its being overruled an appeal was
taken to the supreme court where
the finding and Judgment was re-
versed. u' T2.n .n:,.,. :s.H
The city, although defeated in the
lower court, has won the case in the
supreme court and this throws the
burden of all the costs in both courts
onto the plaintiff and the same will
be assessed as a judgment against
him. Few people realize, perhaps,
what expense it means to bring a suit
in the district court and carry it
through the supreme court1 if they
fail to win in their contentious. AS
Ia matter of information it might be
stated that the costs of this suit to
Mr.. Fehd, exclusive of the defendants
attorney fees, will amount in round
numbers to $52500. The costs in the
district court were S102.55, including
filing, copy, taxing fees, reporter,
jury, trial and sheriff's expense and
$57.S5 for witnesses. Five attorneys
were employed by the plaintiff and
their fees will amount to about 5000.
Printing of the briefs for the supreme
court cost $135, and the costs in the
higher court were about $685.. This
makes total of about $525.55. ''NH
The attorneys for Mr. Fehd were
70. N. Downs, o. c. G. Phillips, Gleas-
on & Preston and H. H. Sheriff. City
Solicitor c. c. Orvis appeared for the
lCity of Oskaloosa. The opinion. of
Judge Deemer Is as follows: b"lE f.ts
Plaintiff averred that he was the
owner and possessor of certain
three acres of land and that said
land was the homestead of the father,
now deceased and has been in the
possession of the family for many
years last past He asked and was
allowed as damages depreciation in
the rental value of the premises from
June 16, 1905, to May Is, 1907. The
jury We're also instructed as follows:
Also, If you find from a preponder-'
ance of the evidence that the plain
| tiff and his family in their home and
house suffered Inconvenience and dis
comfort by reason of the alleged NUS
ance, then you may allow an addition
al sum as damages in such reasonable
sum under the evidence as will COM
pensate the plaintiff for such incon-
venience and discomfort suffered by
the plaintiff and his family, caused by
reason of said nuisance, if any. The
plaintiffs damages in all not to exceed
the sum of $S5OOO, the sum claimed
in the petition.
The verdict was for $4,000, De-
PENDANTS motion for new trial was
overruled and Judgment was entered
upon the verdict. 1t Appeals from
the testimony that plaintiffs father,
Frederick, now deceased, was, during
| his life time, the owner of the prop
Ierty now claimed by plaintiff; that
| by will of date March 18th, he devised
the same to plaintiff and that since
the death of the father which occur
red some time during the year 1905,
plaintiff and his mother have used
and occupied the premises. These
premises were the homestead of the
father and since his death they have
been occupied by plaintiff and his
mother. Plaintiff is an unmarried
man and he testified that he and his
mother lived upon the premises and
that he lived with her or she with
.him-he did not know which-that he
furnished some of the groceries and
whatever was needed in the house
for the past Is years, that his father
owned some of the household goods
and he part and that he was sup
plying most Of the necessaries. The
will did not mention the widow nor
did it give her anything. At the con-
clusion of plaintiffs evidence defend
ant moved for a verdict in its favor
because plaintiff had not shown own
ership of the property. nor any right
to maintain the action. This was
overruled and when the Court came
to instruct the jury it said that the
undisputed evidence showed plaintiff
to be the owner of the property and
that he had been such owner since
June 18th, 1905. 1t should also be
stated that the will referred to was
admitted to probate July 9Th. 1905.
that plainiff was the execuor thereof,
that he filed his final report as such
executor and was discharged Aug. 3,
1906. Before the death of the father
1t is clear that plaintiff was not the
head of family although supplying
part or all of the supplies.
"Presumptively the father was the
head of the family hefora his death