Dorr v. Simmerson

• Decision Date: 08 June 1905
• Parties: DORR v. SIMMERSON.
• Court: Iowa Supreme Court

127 Iowa 551

103 N.W. 806

DORR

v.SIMMERSON.

Supreme Court of Iowa.

June 8, 1905.

Appeal from District Court, Wright County; W. D. Evans, Judge.

Action to recover damages to plaintiff's property due to the diversion of surface water thereon, and to restrain defendant from maintaining the ditches and drains whereby it is alleged he unlawfully collected and discharged the water upon plaintiff's land. Trial to the court, decree dismissing plaintiff's petition, and he appeals. Affirmed.Birdsall & Birdsall and Peterson & Humphrey, for appellant.

Nagle & Nagle, for appellee.

DEEMER, J.

Plaintiff is the owner of the southwest quarter, and defendant the owner of the northwest quarter, of section 3 in a certain township in Wright county. Upon defendant's land are three ponds, the natural outlet to which was a ditch or swale running in a southwesterly direction onto the east half of section 4. When this ditch or swale reached the southeast quarter of section 4 it turned in a southeasterly direction, and ran down over the southwest corner of plaintiff's land. Between sections 3 and 4, and immediately west of the land owned by plaintiff and defendant, there is a highway running north and south. The natural drainage of the ponds on defendant's land, to which we have referred, and of the surface water on defendant's land, was southwesterly upon and onto the east half of section 4, and from section 4 southeasterly across and over plaintiff's land. A considerable part of plaintiff's land drained southwesterlyinto the ditch coming from the east half of section 4. About 20 years ago the highway of which we have spoken was improved, and a ditch was cut on either side thereof, which carried the water coming from defendant's land down to where the ditch or swale again crossed the highway as it came from the east half of section 4. And about 15 years ago an open ditch was cut through the ponds on defendant's land down to the highway ditch on the east side of the highway. See Dorr v. Simerson, 73 Iowa, 89, 34 N. W. 752. In the years 1901 and 1902 defendant laid tiles in this ditch from the ponds to the highway, cutting the ditch a little deeper than it had been, in order to receive the tiles, but draining no other ponds than those which had theretofore been drained by the open ditch. Plaintiff claims that the defendant thus increased the flow of water upon his [plaintiff's] land, damaging his crops and otherwise injuring him, while defendant insists that the damage, if any, received by plaintiff, was due to excessive rainfall during the year 1902 and 1903, and not to any act of his. Defendant also denies that he in any manner increased the flow of water upon plaintiff's land; that he changed its natural course, or threw it upon plaintiff's land in any other manner than it would have gone in the natural way. He admits that he put in the drain tile, but contends that, as he laid it in the natural water course, he is not liable for any consequential injuries resulting therefrom.

The right of a landowner to place tiles in swales or ditches to carry the water from ponds upon and onto lower lands crossed by these swales has already been recognized by this court. Wharton v. Stevens, 84 Iowa, 107, 50 N. W. 562, 15 L. R. A. 630, 35 Am. St. Rep. 296. Such a right is necessary, in this country, in order that low and swampy lands may be reclaimed, and a denial thereof would be productive of incalculable mischief. In Vannest v. Fleming, 79 Iowa, 638, 44 N. W. 906, 8 L. R. A. 277, 18 Am. St. Rep. 387, it is said: “The owner of the dominant estate has the right to conduct the water falling upon his land, by means of underground title drains, with the channel provided by nature for the drainage of his land, and through such channel to cast it upon the lower or servient estate.” As the original ditch...