Durst v. Puffett
| Decision Date | 19 June 1917 |
| Docket Number | 30708 |
| Citation | 163 N.W. 201,181 Iowa 14 |
| Parties | GODFREY DURST, Appellee, v. WILLARD A. PUFFETT, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED SATURDAY, SEPTEMBER 29, 1917.
Appeal from Woodbury District Court.--J. W. ANDERSON, Judge.
ACTION to enjoin the obstruction of a natural water-course, and the diverting of the natural flow of the water in its natural channel, to the prejudice of the plaintiff. Decree for the plaintiff in the court below. Defendant appeals.
Reversed.
F. L Ferris, for appellant.
C. N Jepson and J. F. Stecker, for appellee.
This action is to enjoin the defendant from maintaining an obstruction in what is claimed to be a creek or natural watercourse, whereby the natural flow of the water in the creek is interrupted and the waters diverted from their natural course, to the prejudice of the plaintiff.
The plaintiff's and the defendant's land joins. Plaintiff's land is on the west. They are divided by a fence running north and south, about one-half mile in length. The plaintiff's land is in Section 18 and in the west half of Section 17. The dividing fence runs through the center of 17. Defendant's land is to the east of this fence, and therefore in 17. The creek in question, we may assume for the purposes of this case, is a natural watercourse. It starts north and east of plaintiff's land, but through plaintiff's land runs practically due west to the fence; thence over defendant's land across a highway to a ditch on defendant's land, by which the water from the creek is carried still farther west and emptied into what is known as Oregon Creek; thence carried by Oregon Creek in a northwesterly direction to the Little Sioux River.
The plaintiff claims that the appellant obstructed the flow of the water through this creek at the division line, by placing rocks in the bottom of the creek at that point, the effect of which, plaintiff says, is to obstruct the free flow of the water and cause it to spread out and over plaintiff's land to his damage. The defendant claims, however, that he has not obstructed the natural flow of the water in this creek, and says that whatever damage the plaintiff has sustained has been caused by the natural overflow of water from streams and other causes.
This is practically a fact case. Much learning has been expended in effort to make it appear that, under the law of this state, if surface water from the dominant estate uniformly and habitually flows over a given course, having reasonable limits in width, onto the servient estate, the owner of the dominant estate has no right to cause this surface water to be discharged upon the servient estate in any other way, or in greater quantities, than it would so flow in the course of nature. Further, that a natural watercourse is not necessarily a channel with banks, but it may be such in contemplation of law, even though there are no banks, if the water uniformly flows in a certain line within reasonable limits; that a watercourse is the natural line of flowage. We are further told that it is not necessary that this watercourse be the result of natural causes; that it may be aided by the hand of man, and if, so aided, it there-after becomes a living, flowing stream of water for the requisite length of time, it becomes a watercourse, and equity will interfere to restrain diversion of the water.
These contentions have their support in Pascal v. Donahue, 170 Iowa 315, 152 N.W. 605; Jontz v. Northup, 157 Iowa 6, 137 N.W. 1056; Bramley v. Jordan, 153 Iowa 295, 133 N.W. 706; and Falcon v. Boyer, 157 Iowa 745, 142 N.W. 427. So we have abundant authority for saying that the stream or creek or watercourse in controversy is a watercourse, and we will so treat it in the discussion of this case.
We have authority for further saying, on the assumption that this is a natural watercourse, that equity will enjoin the continued diversion of the waters from this creek from its natural course on plaintiff's land.
This brings us to a consideration of the facts as disclosed in this record. While the record discloses that plaintiff owns about 520 acres of land in Sections 17 and 18, west of the line running north and south through the center of Section 17, and defendant's land is all east of this line in 17, we have only to deal with so much of the land of either of these parties as lies in Section 17.
The plaintiff owns the east half of the northwest quarter, and the southwest quarter of the northwest quarter, and the northwest quarter of the southwest quarter, of Section 17. The defendant owns all of the northeast quarter of 17. The obstruction complained of is where the creek crosses the fence line between the land of the plaintiff and the land of the defendant, just north of the center of Section 17. There is a road running in a northeasterly and southwesterly direction across the southeast quarter of the northwest quarter of 17, cutting off about 2 acres in the southeast corner of this 40. The...
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