Johnson v. Ruth

• Decision Date: 23 November 1909
• Citation: 123 N.W. 326,144 Iowa 693
• Parties: GEORGE P. JOHNSON, Appellant, v. CHARLES RUTH ET AL
• Court: Iowa Supreme Court

123 N.W. 326

144 Iowa 693

GEORGE P. JOHNSON, Appellant, v. CHARLES RUTH ET AL

Supreme Court of Iowa, Des Moines

November 23, 1909

Appeal from Story District Court.--HON. R. M. WRIGHT, Judge.

ACTION in equity to enjoin defendant Ruth from draining his premises or discharging the water therefrom upon plaintiff's premises in any other manner or place, or in any greater quantity, than in accordance with the natural drainage of the land. The county of Story and the trustees of Franklin township in said county were made defendants, and, as to them, it was asked that the public highway between two parcels of defendant's land be so constructed as to permit the water coming from one portion of defendant's land to flow through a culvert onto another portion of defendant's land without being diverted to the plaintiff's land. There was a decree dismissing plaintiff's petition on condition that the trustees of the township should construct a plank culvert in the highway sufficient to carry the water in its natural course from one portion of defendant's land to the other portion without its being diverted to the plaintiff's land, and that defendant construct a tile from a pond on one portion of his land so as to carry the water flowing therefrom through this culvert in the natural course of its flow, otherwise the relief prayed for in plaintiff's petition should be granted, and the court taxed one-half the costs to plaintiff and one-half to the defendant Ruth. From this decree plaintiff appeals. Affirmed.

Decree affirmed.

McCarthy & Luke, for appellant.

Fitchpatrick & McCall, E. M. McCall and E. H. Addison, for appellee.

OPINION

MCCLAIN, J.

We do not find it necessary to elaborately describe by plat or otherwise the relations of the two parcels of defendant's land to the two parcels of plaintiff's land and to the highway which separates the parcels of each. It is sufficient to say that plaintiff's premises are separated by a public highway running east and west and that east of plaintiff's premises, separated by the same highway, lie the two parcels of defendant's land, and that plaintiff's complaint is that waters flowing from the north on defendant's land, and which in the natural course of drainage would cross the highway and be discharged on the south portion of his own land, have been diverted by a ditch along the north side of the highway, so that they run west for a distance, and then flow on south upon the south portion of plaintiff's land. According to plaintiff's contention, the cause of this diversion was originally the construction of the highway without a culvert, and with a ditch on the north side thereof carrying to the west water which should have flowed directly to the south. The court recognized the justice of this complaint by requiring the township trustees to construct a culvert and the defendant Ruth to so tile the pond on the north...