Cowley v. Reynolds

• Decision Date: 13 December 1916
• Docket Number: No. 31111.,31111.
• Citation: 160 N.W. 241,178 Iowa 701
• Parties: COWLEY ET AL. v. REYNOLDS ET AL.
• Court: Iowa Supreme Court

178 Iowa 701

160 N.W. 241

COWLEY ET AL.

v.REYNOLDS ET AL.

No. 31111.

Supreme Court of Iowa.

Dec. 13, 1916.

Appeal from District Court, Wright County; J. L. Kamrar, Judge.

Suit in equity to enjoin the alleged diversion of water from its natural watercourse. There was a decree for the plaintiffs, and the defendants appeal. Reversed.B. H. Mallory, of Hampton, and Birdsall & Birdsall, of Clarion, for appellants.

Peterson, McGrath & Archerd, of Clarion, for appellees.

EVANS, C. J.

Reference to the following plat will be an aid to an understanding of the evidence:

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The foregoing plat was prepared by an engineer at the instance of the defendants and was offered in evidence by the defendants. In some specific respects its correctness is disputed by the plaintiffs, and the questions thus raised will be considered in the opinion. Otherwise the general correctness of the measurements and elevations shown on the plat are well supported by the evidence and are not challenged. The plaintiffs Leach, Cowley, and Smith are the principal landowners in a certain drainage subdistrict No. 73, which subdistrict is a part of the original district No. 7. The defendants are the joint owners of the northeast quarter of section 2, which land is located at the head of subdistrict No. 73. Subdistrict No. 73 was laid out so as to include 30 acres of the defendants' land in their southwest 40 and 5 acres thereof in their southeast 40, the rest of the land of the defendants being omitted from the subdistrict. The defendants claim that all their land within the boundaries indicated upon the plat has its natural course of drainage towards the south and is within the same general watershed as subdistrict 73. The plaintiffs claim that there is a natural divide which separates the 35 acres included within the subdistrict from the land of the defendants lying farther north. The defendants were proceeding to tile-drain their land in such a way as to carry the water into the main drain of subdistrict 73, and were restrained therefrom by the institution of this suit. Such is the general nature of the controversy. Original district No. 7 includes all the lands of all the parties hereto. Its main drain is an open ditch and has its head, as shown on the map, in the northwest quarter of the northwest quarter of section 2, and it carries the water to the south to the center of section 11, and thence to the east. The main drain of subdistrict 73 is a covered tile drain. It has its outlet, as indicated on the map, a short distance east of the center of section 11. Its head is at the point 108.02 on the south line of the defendants' land. The principal beneficiaries of the subdistrict and the principal contributors to its cost were the plaintiffs Leach, Smith, and Cowley and the defendants. The approximate cost of the improvement was $3,200, of which $451 was assessed against the defendants for the outlet afforded at their south line. The boundaries of the subdistrict were fixed on the theory that there was a natural divide cutting off 35 acres of the defendants' land from that farther north, and that the land lying to the north was within a different watershed. The contention for the defendants is that all their land indicated in the plat is in a practical sense within the same watershed, and that practical drainage of all such land is impossible except towards the south and through the 35 acres of their land which has been included in the subdistrict. The dilemma presented is, on the one hand, that if the course of natural drainage for the defendants' land is toward the south they are entitled to avail themselves of it regardless of the burden thus cast upon the subdistrict to the south; and, on the other hand, if the defendants are entitled to thus cast their water into the drains of the subdistrict, they will be receiving benefits for which they were not assessed in that they were assessed for benefits to 35 acres only.

Our first impressions of the case were favorable to the contention of the plaintiffs. A careful consideration of the record, however, has satisfied us that it cannot be sustained. We shall set forth the reasons for our conclusions as briefly as practicable.

Near the northwest corner of the southwest 40 of defendants' land is a pond noted on the plat as 109.01. This is a strategic point in the controversy. It is the contention for the plaintiffs that this pond lies wholly outside of the subdistrict, whereas the defendants contend that it is wholly within it. The plaintiffs introduced evidence tending to show that the intention was to run the north line of the subdistrict about 200 feet south of such pond. The engineers on both sides, however, concede that following the courses and distances as made of record in the establishment of the district, the north line of the district runs either through the center of the pond or wholly north of it. It must be taken as a fact therefore that the district as laid includes at least the south half of this pond. There is further dispute at this point. For the plaintiffs it is contended that the overflow from this pond runs west and flows naturally towards the open ditch of the original district 7, whereas the defendants contend that this pond has two outlets, one flowing southeasterly toward point 108.02 (being the head of the tile drain of subdistrict 73), and the other flowing southwesterly along the line A B C D entering the tile drain of subdistrict 73 near the south line of the Leach land. The engineers on both sides measured the elevations of these two outlets. The engineer for the plaintiffs found the elevation of the outlet to the southeast to be 7 inches higher than that to the southwest, whereas the engineers for the defendants found such difference in elevation to be only 1 or 2 inches. We think the difference between the engineer's measurements at this point is not very material. Accepting either one it is plain that when any considerable water is running it will discharge its overflow over both courses. The mere location of the main drain in subdistrict 73 indicates a water course between the points 108.02 and 109.01. Unless there is a water course along such line it would be difficult to account for the classification of the defendants' land for the purpose of assessment which will be referred to later. The line A B C D represents the course of the water which takes the southwesterly outlet as claimed by the engineers for the defendants. For the plaintiffs it is claimed that such is not its course, but that its true course is north and west into the main ditch. This contention is not sustained by the testimony. The circumstance put forward by the plaintiffs in support of the contention is that the Sellick land is actually drained into such open ditch of the original district 7. But it is shown conclusively by the testimony of the owners of the land that such drainage was accomplished by cutting through a divide to a maximum depth of 12 feet in order to carry the water into such open ditch. We think that no other conclusion of fact can fairly be reached than that the water from both outlets in pond 109.01 reaches in natural course the main drain of subdistrict 73, the one at point 108.02 and the other at point D. It is also true as already indicated that the north boundary of the subdistrict as laid includes both outlets of such pond within the subdistrict. It follows necessarily that the defendants are entitled to avail themselves of the outlet for which they paid, to the boundary of the district as actually laid. The practical effect of the exercise of such right would be to discharge pond 109.01 into the main tile of the subdistrict at point 108.02.

Turning our attention now to the other wet lands of the defendants lying north of the subdistrict, certain ponds are indicated thereon together with the elevations of their deepest points. The testimony shows that these ponds are deeper than pond 109.01, but these measurements do not indicate the elevation of the surface of the ground or the surface of the pond when full. The testimony also shows that the surface of the ground on this area is very flat with a slight incline to the south, and toward pond 109.01. Likewise the surface of the various ponds are nearly on a level with each other and with pond 109.01. It is not seriously disputed that the natural course of drainage of this area, such as it is, is toward 109.01. It is because of this fact that the question of the location and outlets of this pond have been deemed so important in the case. If this be the natural course of drainage for such area then the defendants were within their rights in draining their land in this direction. It was none the less their right because it operated to cast an unsuspected burden upon subdistrict 73. We hold therefore that the exercise by the defendants of the right to drain pond...