Perkins v. Palo Alto County

• Decision Date: 20 October 1953
• Docket Number: No. 48301,48301
• Citation: 245 Iowa 310,60 N.W.2d 562
• Parties: PERKINS v. PALO ALTO COUNTY et al.
• Court: Iowa Supreme Court

Page 562

60 N.W.2d 562

245 Iowa 310

PERKINS v. PALO ALTO COUNTY et al.

No. 48301.

Supreme Court of Iowa.

Oct. 20, 1953.

Rehearing Denied Dec. 18, 1953.

Dwight G. McCarty, of Emmetsburg, for appellant.

Leslie A. Prichard, of Emmetsburg, for appellees.

MULRONEY, Justice.

Plaintiff owns 80 acres in section 17 in West Bend Township in Palo Alto County, which is bounded on the west and south by county roads. In April 1951, he filed his petition in equity against the defendant county, the board of supervisors, and the individual members thereof, alleging that defendants graded the road along the south side of his land (sometimes called the West Bend Road) across a natural, north to south, water course without putting a culvert through such grade, and without putting in an adequate ditch to take the water, thus backing up the water and flooding his land. The petition also alleged two gate-fill approaches to plaintiff's land, one in Section 17, and one in Section 16 to the east had been removed by the road improvement and not put back. The prayer was for a mandatory injunction requiring defendants to put a culvert through the road to the south of his 80 in the natural watercourse; the installation of the gate-fill approaches to his land in Sections 16 and 17; the abatement of the nuisance of the flooding of his land; and actual damages in the sum of $5,400 and $1,000 exemplary damages against one member of the board of supervisors. The petition also alleged plaintiff owned another 80 acres in Section 20 in the same township where a gate-fill approach from the county road was necessary and it sought to require defendants to install it.

Upon motion of defendants the court struck all allegations material to plaintiff's claim for damages, and defendants then answered, tendering the two gate-fill approaches to plaintiff's land in Sections 16 and 17, denying the necessity of the third in Section 20, and denying other allegations in the petition, specifically pleading, however, that the roadside ditch adjacent to the west and south sides of plaintiff's 80 in Section 17, was the watercourse to carry the water east to the Des Moines river; that this watercourse had been in existence since 1917 when it was constructed at the request of, and with the acquiescence and consent of the then owner of plaintiff's land, and that plaintiff had knowledge of the continuous existence of said watercourse and by virtue of its continuous existence since 1917 it had become a natural watercourse.

The trial court found that prior to 1917 a natural watercourse entered plaintiff's land on the northwest side, flowing generally in a southeasterly direction across the land and under a bridge in the West Bend Road and on south to a lake. The court went on to find that in 1917 the highway along the west and south sides of plaintiff's land was regraded and the bridge on the south road was removed and the roadside ditches constructed to carry the water around the edge of the 80 instead of across it, which diverted the water from the natural watercourse, and carried it on east to the Des Moines river. The court found the artificial watercourse was constructed at the request of Lafe Hinton, the then owner of plaintiff's 80 (which plaintiff purchased from Hinton in 1934) and that plaintiff who had always lived in the area had personal knowledge of the new watercourse before and after it was constructed. The court held the roadside ditch watercourse was now the natural watercourse and plaintiff was not entitled to have a culvert constructed under the south road to carry the water in the old watercourse south to the lake. The court also found there was no showing of the necessity for the gate-fill in Section 20, but decreed the county should replace the gate-fills leading to plaintiff's property in Sections 16 and 17, and assessed court costs, two-thirds to plaintiff and one-third to defendants. Plaintiff appeals and the first proposition he relies upon for reversal is that the court erred in denying the gate-fill in Section 20.

I. Plaintiff's 80 acres in Section 20 is referred to in the evidence as the south 80 and his 80 acres in Section 17 is referred to as the north 80. His home and farm buildings are located on the south 80, approximately 40 rods west of the northeast corner of the 80. The north 80 is mostly used for pasture. Plaintiff testified that there had always been a gate at the northeast corner of the south 80 opening onto the road that leads north to the north 80, which was used for entrance from the highway for stock as the ditch was not deep, but when this road was graded and the ditch deepened the entrance could not be used and the stock had to be driven 40 rods west of the corner on the highway to the farm buildings. It does not clearly appear in the evidence when this road was graded but there is some indication it was in the fall of 1950. Plaintiff testified that in his farming operations he had to drive his stock on the road a good deal between the home and pasture eighties--sometimes as much as each night and morning when he had sheep and there was danger from dogs if the sheep were left in the pasture at night. He said the road west from this gate was up a steep hill and there was danger from cars which would be eliminated if there was a gate-fill across the deep ditch to the corner gate.

There seems to be no question but that the deepened ditch in 1950 successfully blocked an existing stock entrance to plaintiff's land at the corner gate. Section 308A.16, Code 1950, I.C.A., provides that officers in charge of highway improvements shall not 'destroy or injure reasonable ingress or egress to any property'. The trial court held plaintiff's showing as to the necessity of the gate-fill at this corner gate was nothing more than a showing of convenience to him, and denied relief. The real question is whether the highway improvement destroyed reasonable ingress and egress at this corner gate. We think the evidence shows it did. It is true the corner gate is not far from the entrance to the farm buildings but that entrance is on another road and up a hill and in any event it certainly destroyed a highway entrance that had existed, and under the record was much used, for many years prior to its destruction by the road improvement. What would be 'reasonable ingress and egress' to the property from the highway would not be capable of precise definition but as good a test as any would certainly be one that existed and was used in normal farm operations for many years prior to the improvement. We hold plaintiff entitled to the relief asked with respect to the gate-fill approach from the highway to his land in Section 20.

II. Plaintiff's second proposition is that the court erred in holding that the ditch along the west and south sides of his north 80 had by use and acquiescence become the natural watercourse....