Ditch v. Hess

• Decision Date: 14 November 1973
• Docket Number: No. 55913,55913
• Citation: 212 N.W.2d 442
• Parties: Mary DITCH, Appellee, v. Charles E. HESS et al., Appellants.
• Court: Iowa Supreme Court

Page 442

212 N.W.2d 442

Mary DITCH, Appellee, v. Charles E. HESS et al., Appellants.

No. 55913.

Supreme Court of Iowa.

Nov. 14, 1973.

George C. Claassen, Cedar Rapids, for appellants Hess.

George J. Novak, Cedar Rapids, for appellants Holec.

Mike Wilson, Des Moines, for appellee.

Heard before MOORE, C.J., and MASON, RAWLINGS, UHLENHOPP, and McCORMICK, JJ.

UHLENHOPP, Justice.

This appeal involves a problem of surface water on six pieces of real estate--four farms, a lane, and a railroad right-of-way. The accompanying sketch shows the six pieces, which lie between Iowa Highway 13 and the Cedar River in Linn County, Iowa. The area in question is quite flat.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Surface water flows from high ground northeast of the highway to the southwest. Elevations on plats show that in a natural state, most of the water in the general area where a culvert now crosses the highway must have flowed approximately west onto what is now the Reilly land and a lesser amount must have flowed onto what is now the Ditch land. In the present litigation, we are concerned with the water which comes through this highway culvert. Southeast of the culvert are three other water passageways under the highway, admitting water onto the Ditch land. We are only incidentally concerned with that water, in connection with a damage claim.

The highway, then called Bertram road, was established many years ago. One Hormel owned the land in this area from the highway to the river. At some time a railroad was constructed across the Hormel land, about a hundred rods southwest of the highway. The railroad builders placed two pipes northeast-southwest under the railroad near the south corner of what is now the Reilly land. Those pipes were evidently to take care of some of the water from the waterway in question and other water in the vicinity of the pipes. In addition, the builders placed a north-south culvert under the railroad southeast of what is now the Ditch land. The flow of water in the pipes and culvert is toward the river.

Eventually the Hormel land was divided into four parcels, owned by four different people--two parcels between the highway and the railroad and the other two between the railroad and the river. The owners of the two parcels adjoining the highway conveyed a strip of land between their farms to the owners of the two parcels by the river, for use as a lane to the highway. Where the lane crossed the railroad, two northwest-southeast pipes were placed under the lane, one on each side of and parallel to the railroad. The flow in the pipe on the Ditch-Reilly side of the railroad is northwest toward the two pipes running under the railroad. The flow in the pipe under the lane on the Holec side of the railroad is southeast.

In the days before the lane was improved, the water which came through the highway culvert ran mainly onto the lane and the Reilly land, but some also ran onto the Ditch land. Part of the water ponded in depressions. That which did not evaporate into the air or percolate into the soil eventually found its way through the two pipes under the railroad near the corner of the present Reilly farm and thence into the railroad ditch on the southwest side of the railroad and also onto the land which now comprises the Holec and Hess farms.

Later the owners of the lane improved and raised it a little. In the course of time, silt raised the land at the sides of the lane from the railroad northeasterly. As a result, water from ordinary precipitation ceased to spread out on the Reilly land near the highway culvert, but ran southwest along the Ditch side of the lane for a distance. Most of it then went onto the lane or crossed to the Reilly side. A 1929 survey showed that where the lane joins the highway, the lane elevation was 97.5 feet and the elevation of the land beside the lane on the Ditch side was 95.0 feet. Proceeding southwesterly along the lane for 800 feet, the comparative elevations were 75.8 and 75.3, at 900 feet they were 74.0 and 74.0, and at 1,000 feet (about two-thirds way to the railroad) they were 73.7 and 73.1. During high water around 1929, therefore, the lane must have been flooded, at least around the 900-foot point, and adjacent lands also must have had water. Considerable water would have been on the present Reilly land, some would have been on the lane, and some would have been on the Ditch land. The water on the Reilly land which did not pond would eventually find its way southwest through the two pipes under the railroad. The water on the Ditch side which did not evaporate or percolate would cross to the Reilly side at a low point in the lane or find its way to the railroad on the Ditch side, thence northwesterly in the pipe under the lane, and thence southwesterly in the pipes under the railroad.

Southeast of the lane, the owners of the Ditch farm laid tile southeast through the corner of the adjoining farm to the separate southeast culvert under the railroad.

In that state of affairs, the surface water situation on the farms was tolerable--for the river-bottom farms that they are. But the condition of the lane was very bad for travel in wet whether, especially in the area about 900 feet south of the highway.

In 1953 Francis M. and Mary Ditch owned their farm and R. E. and F. N. Stepanek owned what is now the Hess farm. Endeavoring to improve the lane, Stepaneks raised its level. The result was additional water on the Ditch land. Stepaneks desired to improve the lane further. Ditches sued Stepaneks and prayed that they be enjoined from raising the lane any more and be required to restore the lane to its previous level. Before that case was tried, however, Stepaneks sold their farm to Charles E. and Maude K. Hess. Stepaneks could not furnish good title because of the pending suit and in 1956 agreed with Hesses to furnish $500 to get the drainage dispute resolved with Ditches. Hesses and Ditches then entered into a contract settling the course of drainage substantially as Ditches now claim and agreeing to alterations so that the waterway would be unobstructed.

Stepaneks and Ditches thereupon had workmen lay a 48-inch, 35-foot steel tube across the lane at about a 45-degree angle in a depression approximately 660 feet southwest of the highway. The intake end of the tube on the Ditch side was farther northeast than the discharge end on the Reilly side. On the lane, the workmen built up earth to the sides of the tube so that vehicles could pass over. About a month later, the workmen built a curved concrete wing from the tube upstream on the Ditch side, so as to put the water into the tube, and a similar wing downstream at the opposite end, to head the water down that side of the lane. Stepaneks paid for the improvement, and Ditches dismissed their suit against Stepaneks. Thereupon Stepaneks conveyed to Hesses.

The tube and concrete wings did not accomplish their purpose very well. The second wing (on the Reilly side) deflected some water back onto both the lane and the Ditch land. A ditch was not maintained on the Reilly side of the lane to take the water southwest. Eventually silt and debris in the tube and on the adjoining area reduced the efficiency of the improvement, and still more water went onto the Ditch land. In 1959 Ditches cleaned out the tube and adjoining area and piled the soil and debris along their fenceline adjoining the lane for a distance of about 100 feet southwest. Thereafter the water running through the tube went partly on the Reilly land and partly on the lane. Reillys were dissatisfied about having the water on their land, and Hesses, who lived on their farm and used the lane continually, were dissatisfied about having the water on the lane. Holecs were probably dissatisfied, too, but they lived elsewhere and seldom personally used the lane.

In 1961 Reillys sued Ditches, Hesses, and Holecs on account of the water flowing onto the Reilly land. On January 15, 1963, the district court (Penningroth, J.) denied relief except to enjoin Hesses from raising the level of the lane.

In April 1963 Hesses had workmen, using dynamite, blow out the concrete wings which had been installed in 1956. The next year, Hesses also removed the 48-inch tube under the lane. In addition, Hesses and Holecs improved the lane, raised it somewhat, and placed 610 tons of crushed rock on it. As a result, the lane was good but water could not cross it. The water spread out on the adjacent part of the Ditch farm, causing erosion, fence damage, and crop losses. Ditches' crop losses between 1963 and 1966 amounted to $4,537.44.

In 1968 Mary Ditch, then sole owner of the Ditch farm, commenced the present suit against Hesses to recover crop damage and to require restoration of the free flow of water from the Ditch side of the lane. Mrs. Ditch subsequently joined Holecs as defendants. After trial, the trial court (1) granted Mrs. Ditch damages of Hesses in the amount of $4,537.44 and interest, (2) ordered Hesses to restore the 48-inch pipe and the concrete wings, to establish a ditch along the lane from the highway culvert to the 48-inch pipe and from the discharge end of the 48-inch pipe to the railroad, and to keep those ditches clear, (3) permitted Mrs. Ditch to make those improvements at Hesses' expense if they faiiled to do so within 90 days, (4) enjoined Hesses and Holes from interfering with such drainage, and (5) retained jurisdiction. Hesses and Holecs appealed.

At the outset, Hesses and Holecs contend that the decree, if carried out, would embroil them in litigation with Reillys and the Railroad. They say that under the decree, the water will be cast upon the lands of Reillys and the Railroad as an outlet in greater quantities and velocities than in a natural state. They assert that essentially the decree solves Mrs. Ditch's water problem by casting the water on the lands of proprietors who are not parties to this litigation.

This...