Falcon v. Boyer

Decision Date02 July 1913
PartiesFALCON v. BOYER.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Linn County; M. P. Smith, Judge.

Action in equity to restrain the defendant from diverting the waters of a running stream from its natural course on his land to the land of the plaintiff and for damages. Judgment and decree for the plaintiff. Modified and affirmed.Jamison, Smyth & Hann, of Cedar Rapids, for appellant.

Voris & Haas, of Marion, for appellee.

GAYNOR, J.

The defendant, Boyer, is the owner of the S. E. 1/4 of section 27. The plaintiff, Falcon, is the owner of the S. W. 1/4 of 26 and the N. E. 1/4 of section 34, and each was the owner of said land at the time of the happening of the matters complained of. That what is called by the plaintiff a branch of Indian creek, runs across plaintiff's land in section 26 and crosses the line between 26 and 27 about 27 rods north of the southeast corner of 27, passes through 27 in a southwesterly direction into section 34, and crosses the line between 27 and 34, 27 rods from the southeast corner of 27. That this so-called branch of Indian creek had its source some distance north and east of the point where it originally crossed the line between 26 and 27. That, from the point where it crossed the section line between 27 and 26, it continued in a southwesterly direction until it entered the main channel of Indian creek.

It appears that in November, 1905, the defendant built a dam across this branch of Indian creek just west of the line fence between sections 26 and 27, then dug a ditch upon his own land from that point south along the fence to the southeast corner of section 27; that, after building this dam and excavating the ditch, the waters of this stream were then forced to flow down the ditch so dug and, upon reaching the corner common to 26, 27, 34, and 35, were turned westward along the line between 34 and 27, and thence on until they emptied into the main Indian creek, at a point about 27 rods west of the corner common to the four sections aforesaid.

This action was brought in equity to restrain the defendant from so diverting the waters of said stream by means of said ditch and casting the same upon plaintiff's land in section 34, and for a mandatory order compelling the defendant to remove the dam from said stream so that the waters might flow in their natural channel, and to require the defendant to construct a dam in said ditch to prevent the waters from flowing therein, and to recover damages of the defendant on account of the matters complained of.

The defendant claims that by building the dam aforesaid, obstructing the flow of water in its natural channel in this branch of Indian creek, and by the digging of the ditch aforesaid, the defendant caused the waters to be diverted from their natural course and cast upon plaintiff's land in section 34, to his damage.

Plaintiff says that, by the digging of said ditch and the maintenance of said dam between 27 and 26, the surface water from about 1,200 acres of land was gathered into the ditch and cast upon plaintiff's land in section 34, together with the waters of the creek, no part of which would, in any manner, have been thrown upon plaintiff's land had it not been for the dam so constructed and maintained. All of which defendant denies.

The court, at the conclusion of all the testimony, found the issues for the plaintiff and entered a decree that the plaintiff had sustained and was entitled to damages against the defendant. The court further found that in diverting the water course and gathering together the waters from a large area of land, to wit, about 1,200 acres, and conducting them in the artificial ditch cut by defendant, the defendant has destroyed, in part, the boundary line and the plaintiff's fences thereon between said sections 26 and 27, cut a large deep and irregular ditch on the plaintiff's land 20 or more feet in width at the east end, and from 10 to 15 feet in width at the west end, on the north line of 34, and to a depth of four feet or more, and has washed away the plaintiff's east and west fence from the southeast corner of section 27 westward and cut and washed his division line between sections 34 and 27, and washed away his land; but the court expressly finds that the said sum of $600 does not include any damages claimed, if any are claimed, by the plaintiff for the destruction of lateral support to his lands, and the plaintiff stated in open court that he makes no claim for damages on account of the destruction of the lateral support to his lands and waives all such claim. The court expressly finds and limits all damages awarded the plaintiff, to wit, in the sum of $600, to the damages caused by and on account of the unlawful diversion of the water course by the defendant, and to the washing of the plaintiff's lands by reason thereof, and the destruction of his boundary lines and fences erected thereon, etc., and awards no damages for the destruction of lateral support. The court further finds that the ditch has encroached upon plaintiff's lands and is still encroaching upon the plaintiff's lands southward from the dam to the southeast corner of said section 27 and conducting the water westward from the southeast corner of said section 27 about 444 feet, and that the same is done without any right or authority whatever, and the defendant is hereby enjoined from maintaining the said dam and the said artificial ditch, and from diverting or conducting any of the water collected at said dam in or through the said artificial ditch, and is hereby commanded and ordered by this court to at once remove the said dam and permit the waters collected at said point to flow in their natural way and manner across the section line, between said sections 26 and 27, and southwesterly across the southeast corner of the defendant's lands in section 27, in the natural water course, and in what has been termed the east branch of Indian creek.

From the judgment so entered the defendant appealed and complained: First. That the court erred in finding that the stream or channel across which the dam was built was a natural water course.

[1] To this we cannot agree. It appears that what is termed the East branch of Indian creek extended from a point northeast of the place at which it crossed the section line of 27 and 26, thence southwesterly through defendant's land, and entered into what is called Indian creek; that the water flows naturally in that direction; that many years ago, more than 20, the then owners of the land made some excavations along the line where this stream was at the time the same was dammed; that, by the action of the water, the ground had been gradually cut away until, at that time, it had a well-defined channel, bed, and banks, and that water was coursing through it during most of the year prior to the building of the dam; that this stream so constructed and maintained had been continued for more than 20 years, with the knowledge and consent of the parties to this suit and their grantors. That such a stream becomes and is, in contemplation of law, a natural water course as to these parties and their rights there can be no doubt.

[2] There is no controversy here as to the facts touching this ditch, its construction and character. Therefore the question as to whether or not it is a water course is a question of law.

[3] A water course is defined as a natural stream of water usually flowing in a definite channel, having a bed and sides, or banks, and discharging itself into some other stream or body of water. It is not necessary that its origin be exclusively the work of nature. It may be aided by the hand of man; but if thereafter it becomes a living flowing stream of water, with all the essential elements of a water course, and has remained in such condition for the prescriptive period, then, as to parties through whose lands it runs, and as to their rights, it becomes a water course, and their right to divert it or control it, to the prejudice of riparian owners, becomes fixed and settled.

It seems in this case a great many years ago the water that flowed in this stream subsequently followed this natural course; that the grantors of the plaintiff and defendant made some slight excavation in the ground tending to facilitate the flow of the water over their lands in this natural course. By the action of nature and the laws of gravitation, this water gradually cut a deep and wide channel through the ground, through which the waters had flowed for a great many years, discharging itself into what is known as Indian creek. The original source of the water is not shown in this record; but that they coursed through this...

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  • Artificial Waterways in International Water Law: An American Perspective.
    • United States
    • Vanderbilt Journal of Transnational Law Vol. 55 No. 1, January 2022
    • January 1, 2022
    ...low lands, from which it will not flow in consequence of the natural formation of the surface of the surrounding land."); Falcon v. Boyer, 142 N.W. 427, 429 (Iowa 1913) (stating that it is not necessary that the origin of a watercourse "he exclusively the work of nature. It may be aided by ......

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