The daily Gate City and constitution-Democrat. (Keokuk, Iowa) 1916-1922, 1917-06-16
COURT DECISION
IN DAMAGE CASE
In Twenty-three Typewriter Pages,
Judge Evans Tells Why Wiss-
math Case Was
Reversed.
DISCUSSION OF POINTS
Four Main Topics Are Considered In
the Findings by the Iowa
High Court
JUrlst.

In twenty-three typewriter page
Judge Evans OF the Iowa suprem
court tells why the verdict of $50
600 against the Mississippi Rive
Power company, obtained in the dis
trict court at Fort Madison by thu
Wissmath Packing company, was re
versed. Copies Of the decision have
been received in the city and fur
nish interesting reading matter il
its discussion of the case and it
points,
The Wissmath company sued fol
$4,000. IL claimed that the high
water of the Mississippi caused by
the building Of the Keokuk dam
caused back water IN the cellars OF
the Wissmath packing plant at Fort
Madison, caused the depreciation OF
the value OF the plant and prevented
securing funds to redeem the plant
from an execution sale. It appeared
from the testimony that a mortgage
had been foreclosed in 1912; the in
5uries complained of occurred in
1918. The trial was had before Judge
Hamilton and a jury in 1913. Attor-
neys for the plaintiffs were e. c.
Weber, A. J. Wissmath and ]. R.
Frailey for the defendant George B.
Stewart, J.. o. Boyd, W. E. Blake
and James c. Davis.
Judge Evans discusses several
points OF the case at considerable
length. but he divides his conclu-
6ions into four parts. from which are
taken the following excerpts:
Il. The parties are agreed that
the laws of Iowa applicable to the
congressional acts are those pertain
ing to the condemnation Of private
property for public use. Our consti-
tuition provides that private property
may not be taken for public use
without just compensation first being
made. The Congressional Act is
somewhat broader In it's terms and
provides for compensation to all per-
SONS whose lands or other property
may be taken, overlooked or other
wise damaged That the defendant
would be liable for any proximate
damage is conceded. Whether the
basis Of its liability rests theoretf-
calIy upon contract or tort is not
now material for our consideration
Possibly 1t could be made to rest
upon either one; upon contract on
the theory that its acceptance of the
provisions Of the Congressional Act
was contractual undertaking In be-
half OF all property owners affected;
upon tort on the theory that the pos
session Of property taken should be
deemed continuing trespass until
compensation be actually made The
plaintiff in its pleading appears to
have adopted the first theory and as
the trial court submitted the case on
such theory we shall likewise adopt
It.
TN this case there was no redemp-
ton. Under the statute. therefore
the title and ownership OF the real
estate and all Intervening damage
thereto vested In the execution pur-
chaser. The interest of the dentor
in both was wholly extinguisheL.
Counsel for appellee have fully per-
ceived the difficulty confronting them
at this point. They therefore dis
claim intent to claim damages for
injury to the real estate or to the
possession thereof. They contend,
however. that their clients right of
redemption was valuable right
measured by the value OF the prop
erty less the encumbrance and that
such right was an interest in real
estate.
THE right OF redemption Is not
an estate nor an interest in lands
IN any other sense than that it is a
necessary incident of ownership, at
taching to 1t and following It at all
times. While the ownership con-
tinues, the right OF redemption con.
unues. When the ownership ceases
the right OF redemption ceases like
wise of necessity. There can be no
right OF redemption without owner
Ehip; and ownership without a right
of redemption would not be owner ]
chip. II the plaintiff suffered anv
damages from the flooding of the cell !
lars IL was because 1t was the owner !
of the plant. How then can we avoid !
the effect Of the statute above quoted |
and fail to say that whatever dam !
ages were then suffered have gone
the way of the ownership to the exc !
eution purchaser? Conceding that a !
right of redemption has value of own
ership subject to the encumbrance |
and such was the measure OF dam |
age submitted by the court to the !
jury. If the value of the propertv |
had, been totally extinguished by the !
injuries complained Of the measure !
of damage to the owner would have /
been precisely the same as that |
adopted herein. The fact that the I,
measure of damage for the loss OF the |
entire property and that for the loss
OF the right Of redemption are iden-
teal is Of itself suggestive of the
essential identity of the alleged
causes of action themselves. Plain.
tiff places considerable reliance upon
certain language used in the case of
Conway vs.. Sherman, rs Iowa 588.
The holding in that case was adverse
to the plaintiff therein and therefore
to the theory of the plaintiff therein.
A directed verdict therein was sus
tanned, In the discussion of the case.