Everett v. Christopher
| Decision Date | 23 November 1904 |
| Citation | 101 N.W. 521,125 Iowa 668 |
| Parties | J. B. EVERETT, Appellant, v. HELEN CHRISTOPHER and OLE CHRISTOPHER |
| Court | Iowa Supreme Court |
Appeal from Story District Court.--HON. J. R. WHITAKER, Judge.
ACTION to recover damages because of diverting surface waters. Judgment for defendants, from which the plaintiff appeals.
Reversed.
MCCarthy & Lee, for appellant.
Fitchpatrick & MCCall and D. J. Vinje, for appellees.
The defendants' farm, of one hundred and sixty acres, lies immediately north of plaintiff's eighty-acre tract. The petition alleged "that there is and was naturally a swale across the premises occupied by the defendants entering near the northeast corner, and extending southwest to an exit a little north of the southwest corner;" that it was the natural outlet for the surface water from a large tract of land lying to the northeast; that the defendants "for the purpose of obstructing the flow of said surface water across their premises in the natural channel, and for the purpose of turning the same upon this plaintiff's premises," built a dam across said swale in 1891 "in such a manner as to stop the flow of surface water in its natural channel and turn it across plaintiff's premises," and filling the channel below said dam, and have constructed a barrier so that all the water coming down said swale is prevented from flowing across defendants' premises and is forced upon plaintiff's land; "that by reason of the obstruction of said natural way the water during the present season has been diverted out upon this plaintiff's premises so as to totally destroy seventy acres of corn, and damage ten acres more, and worked injury to other crops, and also plaintiff's land, by excavating ditches therein. Some of the evidence was to the effect that, but for these ditches and dams, none of the surface water would have reached plaintiff's land, while other evidence tended to show that the water naturally flowed to the southwest portion of defendants' land, from whence about one-half of it spread out on the northwest part of plaintiff's farm, and that, after the construction of the ditches and dams, considerable water overflowed from the ditch and passed over on the land of plaintiff, near the center of the north line, and damaged his crops.
The cause was submitted to the jury on the theory that unless surface water was turned on plaintiff's land, which, if allowed to...
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