60 N.W.2d 562 (Iowa 1953), 48301, Perkins v. Palo Alto County

Docket Nº:48301.
Citation:60 N.W.2d 562, 245 Iowa 310
Case Date:October 20, 1953
Court:Supreme Court of Iowa

Page 562

60 N.W.2d 562 (Iowa 1953)

245 Iowa 310




No. 48301.

Supreme Court of Iowa.

October 20, 1953

Rehearing Denied Dec. 18, 1953.

Page 563

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 [245 Iowa 313] 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...

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