Jacobson v. Camden

• Decision Date: 13 November 1945
• Docket Number: 46767.
• Citation: 20 N.W.2d 407,236 Iowa 976
• Parties: JACOBSON v. CAMDEN et al.
• Court: Iowa Supreme Court

20 N.W.2d 407

236 Iowa 976

JACOBSON v. CAMDEN et al.

No. 46767.

Supreme Court of Iowa

November 13, 1945

Lee & Anderson, of Estherville, for appellant.

F E. Rosendahl, of Estherville, for appellants E. S. Camden Nels Osher and Irving Ellerston.

Wm S. Johnston, of Estherville, and James J. Johnston, of Denver, Colo., for appellee Andrew C. Jacobson.

GARFIELD Justice.

Since 1901 plaintiff, James Jacobson, has owned the northeast quarter of a certain section 31 in Emmet county. Since 1912 his brother A. C. Jacobson, has owned the south half of the southeast quarter of section 30, north of plaintiff's farm. Between the two farms is a county secondary road established about 1885.

Plaintiff claims the natural course of drainage from the north 30 acres of his northwest forty and a three acre strip off the west side of his northeast forty is to the north onto the land of A. C. Jacobson. This action was brought in September, 1944, against the county supervisors and A. C. Jacobson, claiming that by work done on the road and digging a ditch along the south side thereof the supervisors unlawfully obstructed this natural drainage and diverted the surface water onto the northeast portion of plaintiff's farm.

Following trial, plaintiff was denied injunctive relief but was awarded damages of $50 and costs, half to be paid by the supervisors and half by A. C. Jacobson. The court concluded that plaintiff had lost about two acres of crop in his northeast corner because the ditch was dug along the road in 1940 and allowed damages of $10 per year for five years. Plaintiff had not asked for damages, although there was a prayer for general equitable relief. Plaintiff's appeal presents quite largely fact questions. The controlling legal principles have been frequently announced.

Section 4644.44, Code, 1939, provides that those in charge of highway construction and maintenance shall not 'turn the natural drainage of the surface water to the injury of adjoining owners; but it shall be their duty to use strict diligence in draining the surface water from the public road in its natural channel, and to this end they may enter upon the adjoining lands for the purpose of removing obstructions from such natural channel that impede the flow of such water.'

It is the duty of highway authorities to place openings in highway grades so as to permit surface water to escape in its natural course from the higher to the lower lands. And a servient landowner is not entitled to have the ditches along the highway so constructed and maintained as to fully protect his lands from surface water naturally flowing thereover, or to change the natural course of drainage. Pate v. Rogers, 193 Iowa 726, 731, 732, 187 N.W. 451. Injunction will lie to restrain highway officials from so improving a highway as to divert water from its course of natural drainage and cause it to flow upon a plaintiff's land in an unusual and unnatural manner. Estes v. Anderson, 204 Iowa 288, 213 N.W. 566. See also Anton v. Stanke, 217 Iowa 166, 251 N.W. 153, and cases there cited.

Defendants say in argument that the question for determination is whether plaintiff is entitled to injunctive relief and that he can be entitled thereto only if defendants have wrongfully diverted surface water onto plaintiff's premises to his substantial damage. Plaintiff agrees to this statement of the question presented.

We first consider plaintiff's claim that the 33 acres in the northwest part of his farm naturally drain to the north onto his brother's land. Plaintiff concedes the land to the south of the 33 acres drains to the south and southeast. Along the east side of the 33 acres is a natural ridge extending south from the highway about 60 rods. West of this ridge is a draw also extending about 60 rods to the south and somewhat southwest. Just south of the road the ridge is about 20 feet higher than the draw immediately to the west. This draw slopes definitely downward to the north--its south end is some 40 feet higher than its north end, at the road. Just west of this draw is another ridge which extends from the road slightly west of south. And west of this second ridge is a second draw extending about 60 rods to the south and southwest. This second draw also has a distinct fall from south to north--the south end is about 27 feet higher than the north end, at the road. West of the second draw is a third ridge which extends south and west from the highway. West and north of this third ridge is a low place of 2 1/2 to 3 acres in the northwest corner of plaintiff's farm. This small area, however, has tile drainage and is not involved in this controversy.

Almost directly north from the second ridge is a lane leading from the highway straight north to the buildings on A. C. Jacobson's farm. A natural creek enters the A. C. Jacobson farm from the west and crosses the lane about 40 rods north of the highway (i. e., about in the middle of the eighty, north and south). From the lane this creek runs somewhat north of east for about 30 rods and then turns to the northeast and leaves the A. C. Jacobson farm slightly west of the center of the north line of his east 40 acres. A. C. Jacobson had installed a 36-inch covered tile drain in this creek from the place where it crosses his lane to the point where it leaves the north line of his east forty. Plaintiff claims and we think the evidence clearly establishes that the natural course of drainage of the surface water from the two large draws on plaintiff's 33 acres is north to this creek on his brother's farm.

Plaintiff offered in evidence a plat of his north eighty and the A. C. Jacobson eighty prepared by J. A. Rowat, Emmet county engineer, from a survey made by him. Mr. Rowat is a college graduate in engineering with 36 years experience in drainage work. Defendants conceded his qualifications. This plat shows numerous elevations of the area in controversy and is much the most reliable evidence before us on this subject. See Priest v. Maxwell, 127 Iowa 744, 747, 104 N.W. 344.

The Rowat plat shows a fall of 28 feet from the low point of the second draw on plaintiff's land, just south of the highway, north to the place where the creek crosses the A. C. Jacobson lane about 40 rods north of the highway. There is a fall of 14 feet from the low point of the first or east draw on plaintiff's farm, just south of the highway, north and somewhat northeast to the creek at about the center of A. C. Jacobson's farm. The ground between the north end of these two draws, just south of the road, and the creek to the north slopes gradually downward. Furthermore, the elevation of the two east ridges is such as to make it impossible that the natural course of drainage from these two draws is to the east and south as defendants alleged in their answers.

Rowat testified for plaintiff. No reason is suggested why he should not be fair to defendants. He said:

'Q. Can any of the water coming on the northwest forty of plaintiff's land flow to the east at any point across the (first or east) ridge AB. A. Only in the road ditch. * * * Based upon my measurements and the levels and elevations I took, the course of natural drainage of water on the northwest 40 acres of plaintiff's land is north and northeasterly. * * * If that ridge were not cut down and the road put through there in the way it is, no water could flow east past that ridge at the location of the highway.

'Q. Where would that water finally go? A. Into the creek which is near the center of the * * * A. C. Jacobson land. * * *. It was into that ditch that the water from the northwest forty of plaintiff's land naturally drained and found its way.

'Q. And would that also be true of the quarter to the west of the (east) ridge AB as it flowed northeast across the road? A. Yes, sir. * * *'

There is much other testimony to the same effect from Mr. Rowat and other witnesses. We have no doubt of the truth of this evidence.

As stated, defendants alleged in their answers that the natural course of drainage from plaintiff's 33 acres in controversy (except the 3 acres in the northwest corner) is to the east and southeast. There is no evidence to support these allegations except that given by A. C. Jacobson himself which is clearly contrary to the physical facts and inherently incredible. See Priest v. Maxwell, 127 Iowa 744, 747, 104 N.W. 344.

A. C Jacobson testified repeatedly upon questioning by his own attorney that no water ever flowed to the north from the northwest portion of plaintiff's land. Finally, after being cross examined by his own counsel and in response to leading questions, he said the natural course of drainage from plaintiff's 33 acres was northeast onto the witness's land and then in a circular course to the southeast, back onto the northeast portion of plaintiff's...