Bramley v. Jordan
| Decision Date | 14 December 1911 |
| Citation | 133 N.W. 706,153 Iowa 295 |
| Parties | BRAMLEY v. JORDAN. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Crawford County; Z. A. Church, Judge.
Suit to enjoin defendant from obstructing the waters in a water course resulted in a decree as prayed. The defendant appeals. Modified and affirmed.Geo. A. Richardson and Shaw, Sims & Kuehnle, for appellant.
Conner & Lally, for appellee.
Plaintiff owns the N. 1/2 and the defendant the S. 1/2 of the S. E. 1/4 of the section. Through this quarter, the Chicago, Milwaukee & St. Paul Railroad extends from about 40 rods east of the northwest corner to a point a little west of the southeast corner. Southwest of the railroad is a water course known as West Paradise creek, entering the quarter five or six rods south of the northwestern corner, and running southeasterly out beneath the railroad bridge near the southeast corner. The banks of this stream are six or seven feet deep, and ordinarily the water was from six inches to a foot deep, and three or four feet wide at the bottom, which was hard with some gravel. In 1907 the defendant cut willow, ash, and brush, and threw these into the creek with butts up stream its entire course through his land, with the exception of about 100 feet, and later excavated a ditch in a direct line from a point a short distance below the division fence 2,100 feet to near the railroad bridge. To force the water into the ditch he constructed several dams, one of which was immediately below the upper end of the ditch. The situation is shown on the accompanying map:
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About 15 acres of plaintiff's land east of the creek are cultivated, and 10 or 12 acres west of it are used for pasture, and there was a ford just north of the partition fence where his cattle drank and crossed the stream. The effect of the defendant's improvements was to back the water on plaintiff's land, retard its movement, fill the ford with débris and mud several feet deep, so that the cattle could not drink or cross there without danger of miring, and, at times of freshets, to overflow his field and pasture. Instead of excavating an adequate ditch, the defendant plowed a furrow along the line of the proposed ditch and dug this out, so that it was about 18 inches deep and 18 inches wide where he intended to take the water from the stream. The dams and other obstructions held the water back, forcing it through the ditch, and this washed out the ditch gradually, and, of course, mud and débris settled in the bottom of the stream above to the depth of several feet. An engineer testified at the hearing in April, 1909, that the upper end of the ditch was then four feet higher than the old bottom of the channel and one foot higher than the bottom was at that time. An opening in the upper dam was made after the action had been commenced, and, after evidence showing the facts as recited had been adduced, at the April, 1909, term of court the parties stipulated that the cause be continued over the term, in consideration of which the defendant undertook to The hearing was resumed at the November term of court following, when it was shown that in May defendant had put in a dam about 35 rods below the partition fence, and on the 24th day of June had erected a dam immediately below the north end of the ditch; also, he removed two spades of earth from the bottom of the ditch, about three feet, and, as these dams turned the waters into it, the flow deepened and somewhat widened the ditch. But, according to the evidence of several witnesses, the bottom of the ditch was still several feet above the original bottom of the creek. One of these made measurements from which it appeared that the ditch at the mouth was five feet wide at the...
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