Kaufmann v. Lenker

• Decision Date: 14 April 1914
• Citation: 164 Iowa 689,146 N.W. 823
• Parties: KAUFMANN v. LENKER ET AL.
• Court: Iowa Supreme Court

164 Iowa 689

146 N.W. 823

KAUFMANN

v.LENKER ET AL.

Supreme Court of Iowa.

April 14, 1914.

Appeal from District Court, Cedar County; F. O. Ellison, Judge.

Action in equity to enjoin the defendants from casting surface water upon plaintiff's land. The defendants pleaded that they had the right to do so, under the law, and, under the issues joined, the case was tried to the court, resulting in a decree for plaintiff, and defendants appeal. Affirmed.Chas. W. Kepler & Son, of Mt. Vernon, for appellants.

Chas. B. Kaufmann, of Davenport, and John T. Moffit, of Tipton, for appellee.

DEEMER, J.

This is a controversy between the proprietors of adjoining tracts of land regarding the right of the defendants to drain certain ponds upon their own land through an 8-inch tile onto and upon the lands of the plaintiff.

The defendants' lands lie north of and abut upon the lands owned by the plaintiff, and the general course of drainage is toward the south and southeast; the land of plaintiff being slightly lower than that belonging to the defendants. On defendants' north 40 acres there are two ponds, one with an area of 2.3 acres, to what is called the overflow line or depression No. 1, and the other, known as depression No. 2, consists of 1.4 acres of land to the overflow line. The overflow from this last depression is into No. 1. The acreage of ground draining into these two depressions is something like 26 acres. There is a natural rim around these ponds, as already indicated, and south and southeast from pond or depression No. 1 there is a natural barrier or ridge, and, while the testimony is in some conflict, it seems that the surface water never overflowed this ridge.

In the year 1892 the defendants laid a 5-inch tile from these ponds south and southwest through a part of plaintiff's land, and westward through the lands of one Bolly to what was known as Otter creek. This tile was laid as nearly as could be along the natural course of drainage. It did not, however, drain all the water from the ponds, and in the year 1907 defendants laid another large 8-inch tile from pond No. 1, southeasterly through their own land, to within 3 feet of the line fence between their own and plaintiff's land. The inlet was laid in the bottom of the pond, and it ran through the natural barrier before indicated, and at its outlet was 2.1 feet below the surface of the ground.

At the outlet of the tile, the defendants, to protect their own land from erosion and the water as it boiled up, constructed a cement abutment level with the top of the ground, which has wings 10 feet long extending either way, and it is about 2 1/2 feet from the top of the cement abutment to the bottom of the tile. As before stated, the 8-inch tile passes through a ridge or natural barrier of at least 2 1/2 feet, and, although the tile extends 1,165 feet, the fall is only three-tenths of a foot per 100 feet. As a result of the 8-inch tile being laid, large bodies of water have been cast on the plaintiff's land after freshets and heavy showers, which never before reached said land, and at a point where water did not flow even after freshets. The 8-inch tile not only cast water in an unduly increased amount and in an unnatural manner, but also where there was no natural water course.

The 8-inch tile has caused a ditch to be cut on the plaintiff's land. At the outlet the width of the ditch is 5 feet, 10 feet down the ditch is 7 1/2 inches deep, and from edge to edge is about 16 feet, and 500 feet down the ditch disappears and the water spreads over a vast area of the plaintiff's land, and the ground is only 4 1/2 inches lower than at the outlet. The surveyor testified: “Yes, sir; I intend to convey to the court the idea that this 8-inch tile is what caused the washing of the ditch.”

Before the 8-inch tile was laid, there was no ditch or water course at the outlet of the 8-inch tile. At the present time there are no other ditches on the plaintiff's west...