Brainard v. The Chicago, Rock Island & Pac. Railway Company
| Decision Date | 08 June 1911 |
| Citation | 131 N.W. 649,151 Iowa 466 |
| Parties | G. H. BRAINARD, Appellee, v. THE CHICAGO, ROCK ISLAND & PAC. RAILWAY COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Keokuk District Court.--HON. B. W. PRESTON, Judge.
ACTION in equity to restrain the defendant from opening a culvert or drain across its right of way. Decree as prayed, and defendant appeals. Reversed.
Reversed.
Carroll Wright, J. L. Parrish, J. H. Johnson and Stockman Baker, for appellant.
C. M Brown, for appellee.
The land affected by the drainage in question slopes from north to south, and is crossed from east to west by defendant's railway. The plaintiff owns the tract immediately south of the right of way, and his wife holds the title to the land adjoining on the north. At the time of the construction of the railroad, many years ago, there was a natural depression or waterway crossing the right of way at or near the point now in controversy and extending in a southerly direction to the Skunk river. In building its grade the company placed a culvert therein to afford passage for water making its way along this natural course. At another point sixty to eighty rods east of this culvert, the railway crossed another depression over which its track was carried on an open trestle, which also afforded passage for water draining to the south. In time the water coming from the north in the course first mentioned instead of discharging through the culvert appears to have found or made its way along a borrow pit or ditch on the north side of the railway grade or fill to the trestle under which it passed, and thence in a substantially direct line south to the river. Later the railway company filled the culvert, since which time the drainage has been entirely through the eastern opening. This condition it is alleged has been maintained for about fifteen years, and plaintiff claims to have adjusted the use and occupancy of his land with reference thereto. Recently, however, the railway company has filled the space formerly occupied by the trestle with a solid embankment in which it maintains a culvert and has signified its intention to open another culvert at or near the site of one which was abandoned on the line of the west watercourse.
To the opening of this culvert plaintiff objects, and brings this action to prevent it. Plaintiff also complains that the culvert which has been substituted for the trestle...
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