City of Waverly v. Page

• Decision Date: 09 April 1898
• Citation: 74 N.W. 938,105 Iowa 225
• Parties: CITY OF WAVERLY v. PAGE ET AL.
• Court: Iowa Supreme Court

105 Iowa 225

74 N.W. 938

CITY OF WAVERLY

v.PAGE ET AL.

Supreme Court of Iowa.

April 9, 1898.

Appeal from district court, Bremer county; P. W. Burr, Judge.

Action in equity to restrain the defendants from filling or obstructing a water course within the corporate limits of the plaintiff. There was a hearing on the merits, and a decree for the plaintiff. The defendants appeal. Affirmed.G. W. Ruddick, for appellants.

A. M. Potter and Gibson & Dawson, for appellee.

ROBINSON, J.

The plaintiff is a city of the second class, organized and existing under the laws of this state. It includes territory on both sides of the Cedar river, and is intersected from east to west by an important street, known as “Bremer Avenue.” Through the central portion of that part of the territory west of the river extends a water course known as “Dry Run.” It crosses Bremer avenue near, and east of, Aspen street, which extends from north to south, intersecting the avenue. The run has two branches, which drain about 1,500 acres of land, and unite within the city limits at a considerable distance northwest of the crossing at the avenue. Penn street is parallel to, and about 140 rods north of, it; and between the two, extending from east to west, are five other streets. The run crosses Penn street, and the distance from that crossing along the run to the river into which it empties is 366 rods, and the fall is about 24 feet. The general course of the run from Penn street to the river, although irregular, is southward near Aspen street to the avenue; thence in a southeasterly direction to the river. From Penn street southward for a distance of 42 rods, the water course is discernible, but does not have well-defined banks. The banks are more prominent further south, and from a point 42 rods north of the avenue to the avenue are reasonably well defined, although not sufficiently abrupt to prevent the cultivation of the ground by ordinary methods, and the running of a mowing machine over it. One half of the bed of the run from the avenue to Penn street has been cultivated, and the larger part of that which has not been cultivated is covered with sod. The banks south of the avenue are well defined, and gradually increase in height towards the river. The water course for a distance of 50 rods from the river is from 8 to 10 rods wide, and its banks are from 10 to 15 feet in height. The defendants own several lots at the intersection of the avenue and Aspen street, which are bounded on the south by the avenue, and on the west by Aspen street, and over which the water course extends. The lots are 110 feet wide from the east to west, and 132 feet long; and the defendants have commenced to raise their surface about 2 1/2 feet, in order to erect thereon a dwelling house, and, if permitted to do so, will fill the water course. The effect of that would be to dam water which, if unobstructed, would flow over the bed of the run, and turn it onto lots and streets in the vicinity; and, if the street and other lots were so graded as to prevent that effect, a dam would be formed, which in times of high water would cause the overflow of a large portion of the city north of the avenue, to the great injury of the numerous inhabitants of that territory.

The plaintiff contends that Dry run is a water course, of which it has control, and which it has controlled for many years; that the water course should have been kept open, for the purpose of draining the territory through which it extends; and that, should it be obstructed permanently, great and irreparable injury would result to the city, as well as to its inhabitants. The defendants admit that there is a slight depression in that part of the city designated as “Dry Run,” but deny that it ever had any defined channel or banks as a water course, or that any water ever flows through it, excepting the surface water from unusual rainfalls, or other extraordinary causes, and that in such cases the flow is for but a few hours at a time; and they insist that they have a right to fill the depression in their lots in the manner described. They contend that the water which would flow north of the avenue could readily be turned along the streets and alleys eastward into the river, and that it is the right and the duty of the plaintiff to make provision for disposing of water from the territory specified in...