Battles v. Roberts

• Decision Date: 29 May 1903
• Citation: 95 N.W. 247,120 Iowa 747
• Parties: ISAAC BATTLES v. ROBERT ROBERTS, Appellants
• Court: Iowa Supreme Court

95 N.W. 247

120 Iowa 747

ISAAC BATTLES v. ROBERT ROBERTS, Appellants

Supreme Court of Iowa, Des Moines

May 29, 1903

Appeal from Polk District Court.--HON. C. P. HOLMES, Judge.

PLAINTIFF asked that defendant be enjoined from causing surface water to flow over his land upon plaintiff's land otherwise than in accordance with the natural drainage, and defendant by cross-petition asked similar relief as against plaintiff. The trial court granted the relief asked by plaintiff, and refused relief to defendant on his cross-petition. Defendant appeals.

Affirmed.

N. T Guernsey for appellant.

W. O Swearingen and Bowen, Brockett & Alberson for appellee.

OPINION

MCCLAIN, J.

Plaintiff in his original petition and amendments thereto makes it appear that he is the owner of eighty acres of land abutting on the west line of Jasper county, and that defendant is the owner of a quarter section of land across the county line in Polk county, the two tracks being separated by a highway on the county line; and the relief asked is that defendant be enjoined from diverting the course of the surface water which had for many years flowed from the south along the course of a ditch northward through defendant's land, and been discharged eastward across the highway upon plaintiff's land near the north end thereof, and causing it to be discharged by means of a ditch along the south line of defendant's premises, across the highway and upon plaintiff's land, and at the south end of such land. Subsequently it was made to appear by the defendant in his cross-petition that plaintiff was the owner also of an eighty acre tract in Polk county, lying along the county line, south of and adjoining the defendant's land, and defendant asked relief with reference to the discharge of water from plaintiff's Polk county tract northward upon defendant's tract.

It appears that prior to the acquisition of these tracts by the respective owners a ditch had been constructed running northward from about the center of plaintiff's Polk county tract and through defendant's land, and the cross-action of defendant against plaintiff was based on the claim that this ditch threw upon defendant's land water which otherwise would have flowed over the surface in a northeasterly direction from plaintiff's Polk county tract to the south end of his Jasper county tract. But, as the court found against defendant on his cross-petition, it must be assumed, as it is assumed by counsel on each side, that this result was in consequence of a determination by the court that the plaintiff had the right to maintain the ditch carrying the water from his Polk county tract in a northern direction, and discharging it through a continuation of said ditch on defendant's land. The counsel for appellant, who, by the way, did not represent him on the trial in the lower court, now concedes the...