Joslin v. Sones

• Decision Date: 05 June 1890
• Citation: 45 N.W. 917,80 Iowa 534
• Parties: JOSLIN v. SONES.
• Court: Iowa Supreme Court

80 Iowa 534

45 N.W. 917

JOSLIN

v.SONES.

Supreme Court of Iowa.

June 5, 1890.

Appeal from district court, Jones county; J. D. GIFFEN, Judge.

This is an action in equity to enjoin the defendant from using, befouling, and diverting the water of a certain spring to the damage of the plaintiff. There was a full trial upon the merits, and a decree was entered for the defendant. Plaintiff appeals.Sheean & McCarn, for appellant.

F. O. Ellison and Remley & Ercanbrack, for appellee.

ROTHROCK, C. J.

1. The plaintiff's right to the use of the spring of water in question is founded upon a conveyance made by one Thomas Grove to the plaintiff in the month of June, 1864. The following is a copy of said conveyance, so far as necessary to a determination of the extent of the grant thereby created: “Know all men by these presents, that Thomas Grove and Mary Grove, his wife, of Jones county, state of Iowa, in consideration of the sum of three hundred dollars in hand paid by Hiram Joslin, of Jones county, state of Iowa, do hereby sell and convey unto the said Hiram Joslin the following described premises situated in Jones county, Iowa, to-wit: The west half of the northeast quarter of the south-west quarter of section twenty-six, (26,) in township eighty-four (84) north, of range four (4) west of 5th P. M. Also the right to dig a trench, and perpetually keep open the same, over and through the south-west quarter of the north-east quarter, and the east half of the north-east quarter of the south-west quarter, all in said section twenty-six, township eighty-four, range four west of the 5th P. M., for the purpose of conveying and receiving water from the spring on the said premises of said Grove, and the right to perpetually receive the water from said spring in the manner aforesaid.” The 20 acres of land conveyed by this deed was part of a farm then owned by said Grove. It also adjoined the farm then and now owned by the plaintiff. The spring in question is not on said 20 acres, but is on the remaining part of the Grove farm, and some 1,400 feet from the line between the two farms, as the line between them was after said conveyance, and as it is at the present time. The easement acquired by the deed consisted of the right to dig a trench or ditch over and across the land of Grove from the line between the farms up to the spring, and to keep the same open perpetually, and the right to receive the water from said spring by means of said trench. In the year 1865 the said Grove sold and conveyed his said farm to the defendant, Sones, and in 1866 the plaintiff dug a ditch from his land across the farm of the defendant to the spring. The plaintiff complains that defendant has interfered with the rights of the plaintiff by building a hog-yard around said spring, and keeping a large number of hogs therein, and that he has used the land through which the ditch runs as a pasture for a large number of horses, hogs, and cattle; that he has erected a spring-house over said spring; that he has dug a well a few feet from said spring, about 10 feet deep, and in such manner as to take water from said spring into said well, and that he has placed a pump in said well which is operated by a wind-mill, and pumps water to his barn,...