Jontz v. Northup

• Decision Date: 23 October 1912
• Citation: 137 N.W. 1056,157 Iowa 6
• Parties: ROBERT JONTZ, Appellant, v. H. S. NORTHUP, Appellee
• Court: Iowa Supreme Court

137 N.W. 1056

157 Iowa 6

ROBERT JONTZ, Appellant, v. H. S. NORTHUP, Appellee

Supreme Court of Iowa, Des Moines

October 23, 1912

Appeal from Jasper District Court.--HON. W. G. CLEMENTS, Judge.

ACTION to enjoin a nuisance caused by the casting of water by defendant upon plaintiff's land and to recover damages for the continuance of the nuisance. Defendant denied the alleged nuisance and pleaded that he did no more than discharge the water from his land upon the land of the plaintiff, which was the servient estate, into a natural swale or water course. On these issues the case was tried to the court, resulting in a decree dismissing plaintiff's petition, and he appeals.

Affirmed.

McClain & Campbell, for appellant.

Mowry & Cross, for appellee.

OPINION

DEEMER, J.

Plaintiff and defendant are owners of adjoining tracts of land plaintiff's consisting of eighty acres composed of two forties running east and west, and defendant's of eighty acres running north and south. What is known as the North Skunk river, flowing in a southeasterly direction, crosses the southwest corner of plaintiff's land, and a swale or slough running in the direction of this river commences north of the north end of defendant's land with branches coming in from both east and west. After these converge, a main slough extends entirely across defendant's land following the natural course of drainage down onto the land owned by plaintiff, and from there into North Skunk river. This slough or swale drains the surface water from about four hundred acres of land and varies in width with the contour of the ground. It had a fall of twenty-four feet across defendant's land. Save in dry seasons water constantly ran down this swale or slough, and during the spring floods was at times three and four feet in depth. Commencing at the Skunk river south of plaintiff's land there was an open ditch of natural origin running back northward upon plaintiff's land and to a point within two hundred feet of the line between the two tracts of land. At its southern extremity this ditch is quite large and deep requiring a bridge to cross it; but it decreases in depth as one nears its source. North of defendant's land were a number of open ditches, which, after converging, pass under a fourteen foot bridge in the highway, and enter defendant's land at the north line. This open ditch continued on southward through defendant's land to a point within eighty rods of the north line of plaintiff's land. There the ditch lost its identity and the water spread out over defendant's south forty.

It will be observed from this statement that the natural flowage of water was from north to sough across the land of both parties, and that there were natural open ditches along the entire course save for about eighty rods on defendant's land, and for about two hundred feet on the land of plaintiff. At these points the water naturally spread out over the land and had no well-defined channel. Some time in April of the year 1908 defendant constructed a ditch upon his land from the end of the open ditch southward to within three or four rods of plaintiff's land, there changed its course at right angles, and ran it seven or eight rods westward parallel with the division line between the two tracts, and there stopped at what is called the "west pasture fence." He contends that he stopped the ditch at a point where the water ordinarily and naturally had always passed from his land upon that of plaintiff. This ditch was made with a plow, and consisted of a double furrow except at a boggy spot where a spade was used, and a ditch of about the same depth as the furrow was cut for a distance of about three rods. It is this ditch or furrow constructed by defendant which is complained of as constituting a nuisance. It might properly be here stated that plaintiff is the owner of another tract of land lying north and east of that owned by defendant, and that he (plaintiff) has for a long time run a tile from this land down to the open ditch on defendant's land near its south end. Plaintiff contends that the open ditch complained of casts water upon his land which did not go there before, that prior thereto it was absorbed by the soil and evaporated from small ponds or low places where it was collected, and that the ditch made by defendant gathered this water and discharged it upon his land in increased quantities and made it unfit for cultivation. It is not claimed that the water is discharged form the ditch at a point where the surface water did not theretofore go, but it is contended that the channel was changed on defendant's land and water collected therefrom and discharged on plaintiff's land in increased quantities. It also appears that before the cutting of the ditch plaintiff had tiled out that part of his land adjoining that owned by the defendant by putting in four lines of tile, one at the west of the slough, another at the east, and another near the center, with a network of cross-tiles near the partition fence. This system of tiling practically reclaimed plaintiff's land, but after defendant dug his ditch the tile would no longer carry the water coming upon him from the north. After the ditch was dug plaintiff, as we understand it, opened up the string of tile running north and south at the north end thereof and put in a barrel, with the thought that the water coming from defendant's land would be taken care of by the tile; but he testified that this ditch caused sediment and debris to wash into the barrel filling it up so that the water could not get into the tile, and that the water and debris had already filled up what is called the west tile. He also claimed that the water from the ditch spread out over his land and made at least one-half acre of land entirely unfit for cultivation. He also claims to have spent several days in cleaning out the barrel which he placed at the end of his tile.

His testimony as to this tile and barrel was as follows: "I turned the water into the barrel to keep it from running over me. When it breaks out it spreads four or five feet. There has been an overflow there since I put in my tile; high water all over. I don't remember that it filled up the barrel that time at all. I have the worst of it cleaned out now, and I took a spade and cleaned it out. There is a big hole punched in the barrel now, but I don't know how it got there. That hole is going to fill up that string. I did not see that hole made, but I could stop it up if it would be left alone." Another witness said of the tiling and the barrel: "Mr. Jontz showed us where his tile was, and I remember at the head of the tile was a trough to the barrel across the end of this ditch that run the water into one of those tile. There was one of the strings of tile that they told us wasn't working very well. They complained it hadn't been put in right. Mr. Jontz told me it wasn't working right. I saw this slough again in December, 1909. There was water running down the ditch. Mr. Jontz turned it into one of his tile ditches to straighten the trend and make the water run into his tile. The tile carried away all that was running then. It was a small ditch. It was wider than a plow furrow but for depth, I could not tell." And another said: "The ditch at the partition fence was not large. There was not very much water running down. That was in November, last fall. The general condition of the ground at that time was dry. There was just a small stream running. Mr. Jontz showed us where it went. He had it tiled. It run by his tile."

We are satisfied, however, from the entire testimony, that the defendant did not cause what is known as the west tile line to fill up, and that the tile into which plaintiff has turned the water generally takes care of that which comes through the ditch dug by the defendant; and we are further satisfied that the point of discharge of the water carried by that ditch is at the lowest place in the depression. Such being the facts, what is the law?

It would seem, if we are to follow what is said in the old case of Livingston v. McDonald, 21 Iowa 160, and what is said in Stinson v. Fishel, 93 Iowa 656, 61 N.W. 1063, that plaintiff has made out a case; but in recent cases there has been a departure from the doctrines there announced, and both the Legislature and the people in their sovereign capacity have undertaken to make it possible for wet lands to be reclaimed, even if by so doing the upper proprietor collects surface or percolating water and discharges it in increased quantities upon the land of his neighbor, provided, of course, that the natural course of drainage be followed. Section 1989-a53 of the Code Supplement reads as follows: "Owners of land may drain the same in the general course of natural drainage, by constructing open or covered drains, discharging the same into any natural water course, or into any natural depression, whereby the water will be carried into some natural water course, and when such drainage is wholly upon the...