Brown v. Armstrong

102 N.W. 1047, 127 Iowa 175

Opinion

Deemer, J.

Plaintiff owns the north half of the southeast quarter of section 22, and the defendant the south half of the same quarter section. Between the two tracts is a private right of way or lane leading to defendant’s house, and other improvements. To the east of both tracts, and abutting thereon, is a county highway running north and south; along the west side of which is a ditch which carries surface water southward into a creek or natural stream. Plaintiff claims that the natural flow of surface water was southward from her land onto that belonging to the defendant, and that defendant has constructed a dam or dyke on the north side of the private right of way in such a manner as to obstruct the flow of surface water across his land, and that at the westerly end of a ditch, constructed on the south side of the private way, defendant bas so ditched, dammed, and drained the water as to cause it to flow 'over plaintiff’s land in a manner other than as nature provided. This is all denied by the defendant; and he further pleaded that the system of drainage existing when this suit was commenced was established long years ago by, the consent and with the acquiescence of plaintiff’s grantors, and that whatever rights she might otherwise have had have been abandoned by her and her grantors. lie also claims that the dyke or dam between plaintiff’s and defendant’s land was constructed by plaintiff’s grantors, and that he (defendant) has acquired the right to have 'the water cast back on plaintiff’s land. As to the cut and fill at the west end of the private lane, defendant denies that it changes the natural flow of the water, and claims that whatever went upon plaintiff’s land was trifling and inconsequential, and of no damage to the plaintiff.

1. Drainage of surface water: interfence with natural flow: estoppel. The rules of law for such cases are well understood. While surface water has been spoken of in the books as a common enemy, it is well established in this State that when water> no matter what its character, flows in a well-defined course, be it only in a swale, and seeks discharge in a neighboring stream,, its flow cannot be arrested or interfered with by one landowner to the injury of another. Wharton v. Stevens, 84 Iowa, 107; Vannest v. Fleming, 79 Iowa, 638; Waverly v. Page, 105 Iowa, 225. The owner of a servient estate has no right to either dam tire surface water and cast it back upon his neighbor, or to collect the same in a body and precipitate the same in increased or unnatural quantities, or in a different manner from the natural flow thereof, to the damage of his neighbor. Livingston v. McDonald, 21 Iowa, 160; Collins v. City, 91 Iowa, 293; Holmes v. Calhoun Co., 97 Iowa, 360. On the other hand, the owner of the dominant estate may by consent, either express or implied, estop himself from relying upon these rights, or he may so abandon his rights as that the owner of the servient estate may acquire a counter easement to have the water turned back upon the dominant estate. Vannest v. Fleming, 79 Iowa, 638; Wharton v. Stevens, supra; Bizer v. Ottumwa, 70 Iowa, 145. We have also said that where surface water has no defined channel, but spreads out over the land without a well-defined course, it may be turned by the landowner in any direction. Wharton v. Stevens, supra.

„ .2. Drainage: estoppel; evidence. In natural order we have to determine, first, whether or not defendant is unlawfully obstructing or accelerating the natural flow of surface water, and, second, whether or not’ plaintiff or her grantors have acquiesced therein † ° in such a manner as that defendant has acquired counter or adverse rights which should be protected. In such cases it is always difficult to ascertain the condition of the ground as nature left it, on account of the fading memory of witnesses, and the natural changes brought about through cultivation of the land. It appears from the testimony that originally there was a pond covering something like two acres of ground on the southeast quarter of section 22, four-fifths of which was on the land now owned by the plaintiff, and one-fifth, on the land of the defendant. Much of the water in this pond had no outlet, but before any improvements were made upon the land, when there was a heavy fall of water, some of it escaped from the pond by running over defendant’s land, both in a southeasterly and in a southwesterly direction; but at no time was the pond completely drained. Save for the overflow, the water escaped through evaporation. One Simpson, who sometime owned the entire quarter section, ran a fence so as to separate the tract into two eighty-acre pieces, but before building the fence, in order to raise it out of the water in the pond, he ran several furrows with a plow through the pond in such a manner as to raise the level of the ground along the line of the intended fence several inches above the natural level. Along this line he built his fence. Thereafter he sold the south eighty-acre tract to the defendant, and the north one to one Beeves. After Beeves purchased the north eighty, and before the private lane between the two tracts was improved, he, Beeves, dug a ditch from the pond eastward to the county highway running north and south, and thus took care of the overflow from the pond. This was done more Than fifteen years ago. Plaintiff purchased the land from Beeves, and reconstructed the fence which had been erected by Simpson or Beeves, although not exactly on the same line, but along a ridge, created by nature or the hand of man, which was higher than the bed of the pond or the surrounding land. Shortly thereafter the private lane was improved by the defendant, he throwing up the center and making a ditch along the south side thereof. This ditch operated to drain the pond which was on his part of the land eastward toward and into the highway. This ditch has so drained the pond on his side of the lane that the land covered thereby has been reclaimed and reduced to a state of cultivation. About the center of his land, east and west, there is a natural divide, and, to carry off the water from the lane, he constructed a ditch on the south side thereof westward, toward his improvements. This ditch ran down to near his bam, and water sometimes followed the wagon tracks in the lane down into his barn lot. To obviate this, he filled up the ditch on the south side at its west end, and cut another diagonally across the lane, thus casting the water upon another part of his land, from which it naturally flowed upon plaintiff’s premises •— that being the natural course of the water. Plaintiff claims that defendant, in improving the lane, and to keep the water in the pond on her, plaintiff’s, land, from flowing across the lane onto his, defendant’s premises, threw up a dam or dyke under the fence on the north side of the land in such a manner as to'cause the water to back up upon and overflow her land and to prevent its following its natural course down over the defendant’s land. This is denied by the defendant, and we are inclined to agree with him in his contention that be dicl not increase the height of this dyke under the fence beyond what it was when originally erected by Simpson, the common grantor of these parties. The ditch dug by the defendant had the effect of draining- that part of the pond on his own land, and had the ditch constructed by Beeves on the north side of the lane as a means for getting rid of the overflow on the land now owned by the plaintiff} and as a part of the general drainage scheme, been kept open, it would have taken care of all the water which, in the course of nature, would have come down on the defendant’s land. It certainly would have taken care of all the water which would have gone over the dam constructed by Simpson at the time he built his fence. For more than fifteen years ■there was an attempt made by plaintiff or her grantors to take care of the water in this pond by draining it off to the eastward into the ditch on the west side of the north and south highway. For nearly that length of time defendant has maintained the grade of the private lane or right of way, and has kept the ditch on the south side thereof open, so as to drain that part of the pond which was on his land into the highway ditch. Under this state of facts, plaintiff is in no position to insist that the dyke constructed originally by her grantor be torn down, and she be allowed to turn the water from the pond on her land into defendant’s ditch on the south side of the lane. She may easily open the-ditch on the north side of the lane which has been called the “ Beeves Ditch,” and thus avail herself of the scheme adopted by the former owners of the land for getting rid of this popd and its overflow. As plaintiff and her grantors acquiesced in this general scheme of improvement for many years, and in fact devised and planned it, she is in no position to claim that the defendant, by ditches or otherwise, should take care of the pond or the overflow therefrom. There is no difference in principle between this case and the Vannest and Wharton Oases, supra.

II. As to the filling of the ditch and the cutting of tbe new one at tbe west end of tbe lane, tbere is not sufficient evidence to show that defendant in any manner changed tbe natural flow of tbe water, or that be collected and discharged tbe same in any other manner than it was naturally wont to go. At most, a trifling amount of additional water would go upon defendant’s land, which at this point drains toward tbe northwest, and tbere is no showing of any damages resulting therefrom. Defendant at this point collected and discharged tbe water upon bis own land, and whatever portion of it found its way onto plaintiff’s premises was due, after all, to the natural lay of tire land.

Tbe decree of tbe trial court seems to be correct, and it is affirmed,.