Braverman v. Eicher

• Decision Date: 21 January 1976
• Docket Number: No. 2--56858,2--56858
• Parties: A. Kent BRAVERMAN, Appellant, v. Frank EICHER et al., Appellees.
• Court: Iowa Supreme Court

Page 331

238 N.W.2d 331

A. Kent BRAVERMAN, Appellant, v. Frank EICHER et al., Appellees.

No. 2--56858.

Supreme Court of Iowa.

Jan. 21, 1976.

Cahill, Lovelace & Poula, Iowa City, for appellant.

Meardon, Sueppel, Downer & Hayes, Iowa City, for appellees.

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

RAWLINGS, Justice.

Plaintiff (Braverman) appeals from decree entered in his action against adjoining landowners (Seville) for relief from alleged nuisance and damages. We affirm as modified.

The two parcels of land here involved are located in Iowa City. The Seville property (dominant estate) is at the crest of a hill which slopes downward to the north where it adjoins the Braverman tract (servient estate).

In 1964, plaintiff started construction of a six structure apartment complex on the aforesaid northerly tract. He attendantly cut into and graded the southerly irregular embankment alongside the involved lot line.

In 1965, defendant Seville commenced development of a six building apartment complex on its land and in so doing filled and graded the northerly portion thereof.

Because of said cuts and fills by plaintiff and defendants respectively, the above noted slope became an escarpment.

Difficulties developed between the parties hereto, due in large part if not entirely from flowage of water and silt onto the Braverman tract. By reason thereof plaintiff commenced this action. Reduced to outline form, these are the allegations upon which he seeks redress:

(1) In 1965 defendants improperly graded and excavated its land, leaving a large bank of dirt near the property line which sloped steeply downward toward plaintiff's property, thereby altering the natural flow of surface waters from the dominant estate. As a consequence, plaintiff alleges use and enjoyment of his land has been harmed by:

(a) deposits of inordinate amounts of mud and silt;

(b) destruction of vegetation;

(c) impairment of habitability;

(d) obstruction of natural light, air and quiet enjoyment;

(e) costly removal of water and mud from plaintiff's parking lot;

(f) erosion of plaintiff's land because of water flowing from a centrally located drainage pipe placed by defendants in the dirt embankment;

(g) casting of trees, stumps, shrubs, and logs onto plaintiff's land;

(h) depreciation in value of plaintiff's property.

Therefore, plaintiff asks $75,000 damages and an order requiring defendants to 'do that which is found necessary and adequate to prevent future injury' to plaintiff's property.

(2) Defendants 'maliciously and willfully' altered the 'natural lay of the land' and the 'natural flow of surface waters' thereon. For this plaintiff seeks $70,000 actual and $100,000 punitive damages.

(3) Defendants agreed to erect a retaining wall on the property line but failed to do so. Thereupon plaintiff prays $40,000 damages and equitable relief with regard to defendants' breach of such alleged agreement.

Defendants deny these allegations and further raise three affirmative defenses. First, prior to any construction or excavation by defendants this plaintiff made numerous 'cuts' in the natural bank of land along the property line, thereby removing a substantial portion of the lateral support to which defendants' dominant estate was entitled. Second, plaintiff had agreed to construct a retaining wall along the property line. Third, in 1965 plaintiff agreed defendants could collect and discharge water through a drainage pipe onto plaintiff's land.

By counterclaim defendants ask that plaintiff be ordered to construct the retaining wall.

In November 1973, trial court's decree was entered. Briefly, the court found Braverman had proved total damages of only $1,432.90, the amount expended by him for removal of silt from his parking lot on several occasions and construction of a drainage pipe extension in order to dispose of water flowing from defendants' land. Based on a finding that the parties hereto were at fault in effecting excavations and fills on their respective tracts, trial court awarded plaintiff half the above sum or $716.45 actual damages. All other relief sought by plaintiff was denied, as was defendants' counterclaim. The court also determined neither party hereto had established existence of an enforceable agreement by the other to construct a retaining wall. Finding, however, they had agreed a retaining wall should be built, trial court ordered it be constructed along the full length of the east-west property line with the total cost thereof to be shared by the parties: one-third to be paid by plaintiff, two-thirds by defendants.

Plaintiff here assigns no less than 18 separate issues in the six divisions of his brief, some of which overlap. Several of these issues relate to matters of fact while others deal with alleged misapplication of the law thereto. Any attempt to specify the issues raised by plaintiff will only serve to unduly extend this opinion.

I. The mere fact that plaintiff seeks compensatory redress in addition to equitable relief does not, per se, mean this case stands in law. See Kriener v. Turkey Valley Community School Dist., 212 N.W.2d 526, 530 (Iowa 1973); Iowa R.Civ.P. 320. We are persuaded our review is de novo despite trial court's finding to the effect this is essentially an action for damages. See Larsen v. McDonald, 212 N.W.2d 505, 507 (Iowa 1973); First National Bank in Lenox v. Brown, 181 N.W.2d 178, 181 (Iowa 1970). See also Mulford v. City of Iowa Falls, 221 N.W.2d 261, 267 (Iowa 1974); Estate of Thompson v. O'Tool, 175 N.W.2d 598, 599 (Iowa 1970).

II. There has been adopted and developed in this jurisdiction what may best be characterized as a modified civil law rule which recognizes a servitude of natural drainage as between adjoining lands. Under this concept a servient estate must accept surface waters which drain thereon from a dominant estate. On the other hand, no right exists to alter the natural system of drainage from a dominant estate in such manner as to Substantially increase the servient estate burden. See Ditch v. Hess, 212 N.W.2d 442, 448 (Iowa 1973); Rosendahl Levy v. Iowa State Highway Commission, 171 N.W.2d 530, 536--537 (Iowa 1969); Board of Supervisors v. Board, 214 Iowa 655, 668--671, 241 N.W. 14 (1932); Section 465.22, The Code 1962. See generally Keys v. Romley, 64 Cal.2d 396, 50 Cal.Rptr. 273, 275--282, 412 P.2d 529, 531--538 (1966); 78 Am.Jur.2d, Waters, §§ 119--124; 93 C.J.S. Waters § 114.

III. It is also understood the instant action is premised upon an alleged private nuisance. See Larsen v. McDonald, 212 N.W.2d at 508; Prosser, Law of Torts, § 89 at 591 (4th ed. 1971); 58 Am.Jur.2d, Nuisances, § 6; 66 C.J.S. Nuisances § 2. See generally §§ 657.1--657.2, The Code 1975.

IV. On the same subject, some difficulty is encountered in determining whether plaintiff's requests that defendants be required to do what 'is found necessary and adequate to prevent future injury to plaintiff' and 'to prevent dirt from coming down upon the property of plaintiff' constitute prayers for a prohibitory or mandatory injunction. See Iowa Natural Resources Council v. Van Zee, 261 Iowa 1287, 158 N.W.2d 111, 115 (1968); McClintock on Equity, § 14 at 32 (2d ed. 1948); 42 Am.Jur.2d, Injuctions, § 17; 43 C.J.S. Injunctions §§ 4--5.

In any event, we construe the aforesaid prayers liberally. See Holi-Rest, Inc. v. Treloar, 217 N.W.2d 517, 526--527 (Iowa 1974); Schlotfelt v. Vinton Farmers' Supply Co., 252 Iowa 1102, 1112, 109 N.W.2d 695 (1961).

And, as stated in Holden v. Construction Machinery Company, 202 N.W.2d 348, 363--364 (Iowa 1972):

"Wherever a situation exists which is contrary to the principles of equity and which can be redressed within the scope of judicial action, a court of equity will devise a remedy to meet the situation, though no similar relief has been given before.' (Citations).'

See also 42 Am.Jur.2d, Injunctions, § 275; 43 C.J.S. Injunctions § 182(c); 27 Am.Jur.2d, Equity, § 103; 30A C.J.S. Equity § 599.

Furthermore, the grant or denial of injunctive relief, of any nature, unquestionably rests in the sound judicial discretion of the court. See Holden v. Construction Machinery Company, 202 N.W.2d at 360--361 and citations; McClintock on Equity, § 143 at 381; 42 Am.Jur.2d, Injunctions, § 24; 43 C.J.S. Injunctions § 14.

V. Also involved is the commonly accepted rule with regard to balancing of the equities. This concept is thus aptly stated in McClintock on Equity, § 144 at 383:

'In determining whether to exercise its discretion to grant or refuse an injunction, the court should balance all of the equities, which include not only the relative hardships to the parties, but their conduct with reference to the transaction, the nature of the interests affected, and the relative proportion of the interests of each that will be lost by whichever course of action is taken.'

See also Helmkamp v. Clark Ready Mix Company, 214 N.W.2d 126, 130 (Iowa 1974); Johnson v. Pattison, 185 N.W.2d 790, 797--798 (Iowa 1971); 42 Am.Jur.2d, Injunctions, § 56; Annot., 40 A.L.R.3d 601.

VI. By five separate assignments plaintiff contents these findings of fact by trial court:

'There is no evidence in the record that any vegetation was destroyed; no evidence that the 'inhabitability' of plaintiff's property has been or will be impaired; no evidence that the light, air, (and) quiet enjoyment of plaintiff's property has been disturbed, and even if the Court could infer that it had, there is no evidence what the damage is or who suffered such damage; no evidence that trees, stumps, shrubs and logs were placed on plaintiff's land or what damage if any, was caused if such had occurred. There is no evidence in the record that plaintiff's property has been depreciated in value, in fact, there is no evidence whatever pertaining to the value plaintiff's property.'

Nothing will be gained by a detailed analysis of the foregoing. Our de novo review discloses trial court's...