Anderson v. Yearous

• Decision Date: 19 January 1977
• Docket Number: No. 2--57435,2--57435
• Citation: 249 N.W.2d 855
• Parties: Theodore W. ANDERSON and Paul D. Smith, Appellees and Cross-Appellants, v. Stanley A. YEAROUS and Mrs. Stanley A. Yearous, Appellants and Cross-Appellees.
• Court: Iowa Supreme Court

Page 855

249 N.W.2d 855

Theodore W. ANDERSON and Paul D. Smith, Appellees and Cross-Appellants, v. Stanley A. YEAROUS and Mrs. Stanley A. Yearous, Appellants and Cross-Appellees.

No. 2--57435.

Supreme Court of Iowa.

Jan. 19, 1977.

Traeger & Koempel, West Union, for appellants-cross-appellees.

Miller, Pearson & Gloe, Decorah and Antes & Antes, West Union, for appellees-cross-appellants.

Heard by MOORE, C.J., and RAWLINGS, REES, REYNOLDSON and McCORMICK, JJ.

RAWLINGS, Justice.

Plaintiffs, Theodore W. Anderson and Paul D. Smith, brought action in equity seeking, by injunction, the removal of a surface water nuisance-obstruction created by defendants, Stanley A. Yearous and Mrs Stanley A. Yearous. Plaintiffs also seek damages caused by water blockage. Defendants appeal and plaintiffs cross-appeal from trial court adjudication. We affirm on both appeals.

The involved two parcels of adjoining land are located near Wadena in Fayette County. Plaintiffs' property (dominant estate) lies generally west of defendants' farm (servient estate).

Surface water from hills to the north empty into a drainage ditch constructed in the early 1940's by plaintiffs' grantors so as to channel the flow easterly along their property line. In turn, defendants' grantor trenched a furrow eastward across the servient property in order to carry the aforesaid ditch water to the Volga River.

In 1959, defendants purchased their land. In 1963, they caused an earthen levee to be erected, extending more than 800 feet along plaintiffs' easterly boundary, in order to stop the flow of water from the west.

Plaintiffs acquired their property in 1968 and encountered no trouble in farming the northeast corner until 1972. In May of that year, Yearous 'patched' holes in the levee and leveled it off to a uniform height of about five feet. The northeast corner of plaintiffs' property was resultantly flooded causing crop damage. The instant action was thereupon commenced.

By their petition plaintiffs, as aforesaid, request (1) issuance of an injunction requiring removal by defendants of the levee; (2) defendants be permanently enjoined from obstructing the natural water flow; (3) damages by reason of flooding due to water blockage; and (4) such other orders as are just.

Defendants, in answer, allege said causes of action stand barred by the statute of limitations, and invoke estoppel.

In support of a reversal defendants contend, (1) plaintiffs failed to prove essential allegations of their original petition; (2) trial court erroneously granted relief to plaintiffs on a theory not pled by them; (3) the instant action was barred by an applicable five year statute of limitations; and (4) the evidence does not support a decree ordering removal of the levee.

By cross-appeal plaintiffs maintain the damages awarded them are inadequate.

I. Our review is de novo. See Iowa R.Civ.P. 334. We give weight to trial court's findings but are not bound by them. See Tamm, Inc. v. Pildis, 249 N.W.2d 823 (Iowa 1976); Iowa R.Civ.P. 344(f)(7). And, as stated in City of Des Moines v. Harvey, 243 N.W.2d 606, 610 (Iowa 1976): 'If the judgment in an equity case is correct, it is our duty to affirm it although the basis upon which the trial court reached its result may not meet with our approval.'

II. By their first two assignments, defendants urge, in substance, allegations contained in plaintiffs' original petition and attendant testimony do not warrant the relief granted them.

Defendants first maintain plaintiffs' action was grounded upon the theory that a natural watercourse flowed easterly along plaintiffs' north boundary and by erection of the levee defendants wrongfully obstructed this drainage. Then, continues the argument, trial court mistakenly premised its decree upon plaintiffs' right to drain water from an artificial course onto the land of another. This latter approach, say defendants, burst upon them as an unexpected judicial bombshell.

Defendants supportively lean on this statement in Skemp v. Olansky, 249 Iowa 1, 6, 85 N.W.2d 580, 583 (1957):

'It is true that even though the special relief prayed for in an action in equity is not supported by the evidence, a request for general equitable relief may often justify the court in awarding other relief, and that such a request is generally to be granted liberally. But the rule is not without limitations. 19 Am.Jur., Equity, section 227, pages 181, 182; 30 C.J.S. Equity § 607, pages 1003, 1004; Paintin v. Paintin, 241 Iowa 411, 413--415, 41 N.W.2d 27, 16 A.L.R.2d 659, and cases cited. The relief granted under the general prayer must be consistent with the case made by the pleadings and must be such as will not surprise the defendant. He must have an opportunity to defend against whatever relief may be granted against him; it will not be granted if there is nothing in the prayer of the bill or in the facts asserted in the pleadings which fairly apprizes him that such relief is asked or may be granted against him. Fairness in the trial of the case demands that much.'

In adopting the position thus taken, defendants first apparently overlook this portion of plaintiffs' second amendment to answer.

'At the time that the plaintiffs purchased the aforesaid real estate a ditch or waterway ran in an easterly direction from a point near the center of the dike which was constructed by the defendants * * *. Prior to the year 1940 the water naturally flowed off the property now owned by the plaintiffs and onto the property now owned by the defendants. Prior to the year 1957 the defendants' grantors both immediate and remote maintained a ditch or waterway through their property to convey the natural drainage from the property now owned by the plaintiffs across the property now owned by the defendants. The defendants had full knowledge and were fully aware that the real estate that they acquired in the year 1959 was lower than the property now owned by these plaintiffs and that defendants' property was subject to the natural flow of water off the higher ground to the west now owned by the plaintiffs. The defendants were well aware of and had knowledge of the fact that the lands they purchased in 1959 received the natural flow of water from the plaintiffs' higher land and that the natural flow of water flowed in an easterly direction off the plaintiffs' land and across the defendants' lower land and then into the Volga River. The defendants erected said dike or levee on or about May 11, 1972, so as to repell the natural flow of surface waters onto the defendants' land where they had flowed for more than thirty years and that the construction of said levee by the defendants has resulted in the ponding of large amounts of water on plaintiffs' property resulting in and will further result in causing continuing and irreparable damages in the future.'

It is to us apparent, the above allegation, voiced prior to trial, fairly alerted defendants to the fact that plaintiffs would rely, in part, on an asserted right to continued usage of the above noted ditch drainage system.

Moreover, by reply to defendants' answer, plaintiffs allege there had existed for many years a trench maintained by defendants' grantor, which carried drainage water from plaintiffs' northerly ditch across defendants' land to the Volga River. Then too, considerable testimony was adduced concerning said north property line ditch which had been constructed in the early 1940's. Indeed, defendants concede, 'the issue of whether or not there was an artificial channel, at least at one time, was tried out'.

We are satisfied the parties hereto did try the issue as to rights attendant upon an existing artificial watercourse, and it was rightfully in the case. See Harper v. Cedar Rapids Television Co., Inc., 244 N.W.2d 782, 786--787 (Iowa 1976); Iowa Dept. of Rev. v. Iowa Merit Employ. Com'n., 243 N.W.2d 610, 616 (Iowa 1976); Theobald v. Weber, 259 Iowa 452, 457, 143 N.W.2d 418 (1966).

Additionally, plaintiffs seek such other relief as is just. In this regard we have held appropriate redress may be had upon facts pled and proved, even though such relief has not been specifically sought. See Pearson v. City of Guttenberg, 245 N.W.2d 519, 533 (Iowa 1976); Iowa City v. Muscatine Development Co., 258 Iowa 1024, 1031, 141 N.W.2d 585 (1966).

It is also well settled such a prayer is to be liberally construed and will often justify a grant of relief in addition to that contained in the specific prayer, provided it fairly conforms to the case made by pleadings and proof. See Braverman v. Eicher, 238 N.W.2d 331, 335 (Iowa 1976); Holi-Rest Inc. v. Treloar, 217 N.W.2d 517, 526--527 (Iowa 1974).

Briefly stated, the relief accorded plaintiffs was not confined to their original petition. Rather, trial court resolved the matter upon the case made by all the pleadings and evidence adduced in course of trial.

Even more significantly, plaintiffs, as demonstrated Infra, did establish an easement by prescription for the flow of water from their north line ditch into the trench or furrow on defendants' land and this initially artificial watercourse ripened into a natural waterway, thus buttressing plaintiffs' original petition. See Nixon v. Welch, 238 Iowa 34, 39--40, 24 N.W.2d 476 (1946). See also Perkins v. Palo Alto County, 245 Iowa 310, 315, 60 N.W.2d 562 (1953); Code § 465.22.

Defendants had adequate opportunity to defend as to the case made by plaintiffs and their claimed surprise at the result obtained blow is deemed spurious.

Defendants' first two assignments are without merit.

III. Next considered is the issue raised by defendants relative to applicability of Code § 614.1(4), our property damage five year statute of limitations.

In substance, defendants posit the levee is a permanent structure erected in 1963 and the limitation period expired in 1968, but the instant action was not commenced until 1972.

It is at once evident the view espoused by defendants is...