Brightman v. Hetzel
| Decision Date | 04 April 1918 |
| Docket Number | 31384 |
| Citation | 167 N.W. 89,183 Iowa 385 |
| Parties | RUTH BRIGHTMAN, Appellee, v. F. G. HETZEL et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Pottawattamie District Court.--THOMAS ARTHUR, Judge.
ACTION to enjoin the defendants, board of supervisors and other public officials, from constructing a grade upon a highway obstructing the flow of surface water gathered into a ditch and discharged upon the public highway. Decree for the plaintiff in the court below.--Reversed and remanded.
Reversed and remanded.
Preston & Dillinger, for appellants.
Turner & Cullison, appellee.
The plaintiff is the owner of the northwest quarter and the south half of the northeast quarter of Section 31. Intervenor Swartfagger owns the southwest quarter and the west half of the southeast quarter of Section 31. Intervenor Emmert owns the east half of the southeast quarter of Section 31. One Christianson owns the north half of the northeast quarter of Section 31. Intervenor Barton owns the west half of the southwest quarter of Section 32, and other lands east of this. A highway runs east and west along the south line of plaintiff's land. Another highway intersects this east and west highway at the center of Section 31, and runs thence southward. There is also a highway running along the east side of Section 31. A river known as the Nishnabotna runs through Section 32, a little to the west of the center line of that section. All the land involved in this suit lies in or adjacent to the river bottom, except the westerly part of Section 31, where the ground rises quite abruptly towards the north and west. The lands north, west, and northwest of plaintiff's west quarter are high and somewhat broken and the same is true of the land west of the Swartfagger west 40. The natural slope of this land is towards the south and east from plaintiff's west quarter, and from the northeast corner of the east 80. It appears that, at the time of the trial, a ditch ran from the hills north of plaintiff's quarter section southeast across the northeast corner of the quarter to a point near the northwest corner of plaintiff's east 80. There the ditch makes a bend, and runs thence south near the west line of the east 80, and empties the water so gathered in the ditch upon the public highway heretofore mentioned, near the center of the section. At the point where the ditch turns near the northwest corner of plaintiff's east 80, a dike or bank of dirt had been thrown up, about two feet high above the surface of the ground, and willows had been planted there to force the water south along the west line of this 80. This ditch varies in width and depth as it courses through plaintiff's land. North of the north line of plaintiff's quarter, this ditch was very large, in some places 35 feet wide at the top and about 12 feet deep, and drains the surface water from a large tract of land. The highway heretofore mentioned, running through the center of Section 31 and just south of plaintiff's land, was established somewhere about 1870. This ditch, from the northwest corner of plaintiff's east 80 to the highway, runs reasonably straight, and reaches the highway at the center of the section. The building of the dike at the northwest corner of plaintiff's east 80 forced the water to the south, and, with the aid of slight excavations, the water wore the ditch south to a point where it reaches the highway by natural processes. Until the water was forced by the building of the dike at the northwest corner of plaintiff's east 80, and the putting in of willows there to force the surface water southward, there was no ditch along the west line of plaintiff's east 80. For some years after this ditch had been formed, and the surface water from the land to the north and northwest had worked its way through to the highway, there was an opening in the highway, a bridge or something of that sort, or a culvert, to allow the water to pass through the highway. Later, the highway became impassable, and the highway east and west along the south line of plaintiff's land was graded up, and a culvert put in--a 24-inch culvert. This culvert was intended to aid in carrying the water to the south side of this highway, thus equalizing the burden of the water between the ditch on the north and a ditch on the south of the highway. It appears that the county had constructed ditches both on the north and the south of the highway, for the purpose of carrying the waters eastward that came from the lands north of the highway, and, as we take it, to the Nishnabotna River, or to some natural receptacle for water to the east. The ditch in question had been there for 20 or 25 years prior to 1911. In 1911, the county, through its board of supervisors or proper officers of the county, graded this highway at this point, and cut large ditches on the north and south side of it for the purpose of conducting the water eastward that came from the north, and so made this culvert in the highway, after it had been graded up. This culvert is a 24-inch culvert.
The claim of the plaintiff is that this culvert is insufficient to carry the water that comes through her ditch to the grade, and the grade tends to cast it back upon plaintiff's land, to her injury. She claims that this ditch has become a natural watercourse; that she has acquired the right to discharge, and the board has no right to obstruct the flow of the water in this natural watercourse to her prejudice.
This action was brought originally against the trustees and road supervisor of Knox Township. Such proceedings were had thereafter that the board of supervisors of Pottawattamie County were made defendants, together with the original defendant.
The claim of the plaintiff in this suit is that she has acquired a right to discharge the surface water accumulating in the ditch upon the public highway at this point; that the ditch has become a natural watercourse; and that the board of supervisors has no right to obstruct the flow of water in this watercourse to her prejudice.
The allegation of her pleading is that this is a natural watercourse, with well-defined banks from 8 to 12 feet wide, and from 3 to 5 feet deep, running through and across plaintiff's land, and crossing said highway at or near the center of the section; that the stream drains about 2,000 acres of land north and west of said highway; that the defendants have removed a culvert or bridge in said highway at a point where the aforesaid stream crosses said highway, about 12 or 14 feet long, which was ample and sufficient to permit the water from said stream to flow unobstructedly across the highway in said culvert or bridge; that said defendants filled up the channel of said stream under the grade, except a circular opening of about 24 inches in diameter; and that said opening is wholly insufficient to carry the water in said stream across said highway, and by reason thereof, the water in said stream is obstructed, and the water prevented from flowing over and across the highway, and caused to accumulate and stand upon plaintiff's land, to her great and irreparable injury.
The prayer of the petition is that, unless the grade of said highway be lowered sufficiently to allow the surface water flowing over said land to pass unobstructed over said highway, and unless the filling up of the watercourse, as above alleged, be removed from said stream of water at the point where it crosses the highway, or unless a sufficient number of bridges and culverts be placed in said highway to permit the surface waters and the water of said stream to pass over and across said highway, this plaintiff will suffer irreparable injury, as aforesaid. Wherefore, she prays that the defendants be required to lower the grade of the highway so as to permit such water to flow over and across the highway unobstructed, or that they be required to remove the obstruction placed in said stream where the same crosses the highway, so as to permit the water to flow freely over the highway, or that it be required to place culverts in the highway in such a number and of sufficient size to permit the surface water flowing off said plaintiff's land and the water in said stream to pass unobstructed over and across the highway.
On the hearing in the district court, a mandatory injunction was issued, requiring the board of supervisors to construct an opening in the highway at the point where the ditch comes from plaintiff's land near the center of Section 31, the opening to be not less than four feet in diameter. Denied all other relief. The defendant board of supervisors and intervenors appeal.
The history of this ditch along the west line of plaintiff's east 80 in question seems to be about this: In the early days, there was a ditch coming from the north of plaintiff's land running through the northeast corner of plaintiff's quarter, continuing its course southeast until it struck the east line of the quarter. The owner of the northeast quarter threw up a dike across the swale at that point, driving in willows and throwing up dirt to make an embankment there, and dug another ditch from this original ditch or swale south to the northwest corner of plaintiff's east 80, and continued the ditch from that point due east along what is now the Christianson 80 and the plaintiff's east 80 to the east road. This ditch was dug with a spade. This ditch was kept open for a number of years. During this time, there was no ditch such as is now in existence along the west line of plaintiff's east 80. Between 1893 and 1895, this ditch was dug from the...
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