Keck v. Venghause

• Decision Date: 06 June 1905
• Citation: 103 N.W. 773,127 Iowa 529
• Parties: KECK ET AL. v. VENGHAUSE ET AL.
• Court: Iowa Supreme Court

127 Iowa 529

103 N.W. 773

KECK ET AL.

v.VENGHAUSE ET AL.

Supreme Court of Iowa.

June 6, 1905.

Appeal from District Court, Louisa County; W. S. Withrow, Judge.

Suit in equity to restrain the building of a levee along a natural water course. There was a judgment for the plaintiffs, from which the defendants appeal. Reversed.H. O. Weaver and C. A. Carpenter, for appellants.

Arthur Springer and Hale & Hale, for appellees.

SHERWIN, C. J.

The facts in this case are practically undisputed, and are briefly as follows: The defendants M. McClurkin and J. A. Venghause are the owners of farm lands in the southeast quarter of section 1, township 73, range 4, and the other defendants are the owners of farm lands either adjoining or near thereto. The plaintiff Keck is the owner of the northeast quarter of section 32, township 74, range 3, and the plaintiffs Key and Williams own lands in sections 36 and 31 of the same township and range. Otter creek is a creek of considerable size; one of its branches having its source about seven miles southwest of the McClurkin land, and the other or west branch thereof having its source about six miles west of the McClurkin land. The two branches come together on the McClurkin land, and the stream then flows northeast into a water course known as the “County Ditch.” The creek is a natural water course, with a well-defined channel, which is from 10 to 14 feet deep, and from 40 to 55 feet wide where it passes through 1--73--4; and water flows there continuously, and continues on through the county ditch into the Iowa river. The depth and width of the channel are about the same for a mile and a half or two miles down the stream from McClurkin's, but from there it gradually shallows until it reaches Keck's land, where it is only about 5 or 6 feet deep. In times of ordinary flood, and when Otter creek is running only bank-full, all of its water is discharged through its channel along the defendants' lands, but when the channel there is bank-full the stream overflows on the plaintiffs' lands, because of the lower banks and slower current. In times of very high water the creek overflows its banks through the McClurkin land, and the water, thus leaving the channel of the creek, spreads out over about a thousand acres of farming land east and northeast, and some of it eventually finds its way back into the stream, several miles below. These overflows along the McClurkin land are occasional only, and, when they do occur, the water goes over the bank for a distance of about 1,200 feet in length, and sometimes to a depth of 2 or 3 feet. It thereafter follows no well-defined channel, but spreads over cultivated fields in an east and northeasterly direction; none of it, however, ever reaching the plaintiffs' lands. To prevent this overflow of their lands, the defendants began the construction of a levee substantially parallel with the east bank of Otter creek, and extending some distance along the same. The plaintiffs thereafter commenced this suit to enjoin the construction of the levee, alleging that, if built, it would divert the flow of water to the channel of the creek, and that such diversion of the water would cause the flooding of the stream below and the overflow of their lands.

The legal question thus presented for determination is an interesting one, and it is not entirely free from doubt, either under our own decisions, or under the decisions of the courts generally. It may be stated thus: May a riparian proprietor embank against the natural overflow from an inland stream, when the effect may be to cast an increased volume of water upon the land of other proprietors, to their injury? Reason and justice should answer the question in the negative, and we believe that the weight of authority has so answered it. The rights of riparian proprietors on both navigable and unnavigable streams are to a great extent mutual or common, and it is a fundamental rule that the use of that which is common to all must be reasonable. The riparian proprietor selects his location for the benefits which may come to him from the common use of the stream, and it is manifest that he should not be permitted to do any act relative thereto that will result in substantial injury to another riparian owner, either above or below. Gould on Waters (3d Ed.) §§ 160-204, and cases cited; 2 Cooley's Blackstone (3d Ed.) 121; East Jersey Water Co. v. Bigelow, 60 N. J. Law, 201, 38 Atl. 631;Tillotson v. Smith, 32 N. H. 90, 64 Am. Dec. 355; Rex v. Trafford, 1 B. & A. 874; Angell on Water Courses (7th Ed.) § 334; O'Connell v. East Tenn. Ry. Co., 87 Ga. 246, 13 S. E. 489, 13 L. R. A. 394, 27 Am. St. Rep. 246;Burwell v. Hobson, 12 Grat. 322, 65 Am. Dec. 247;Crawford v. Rambo, 44 Ohio St. 279, 7 N. E. 429;K. C., M. & B. R. Co. v. Smith, 72 Miss. 677, 17 South. 78, 27 L. R. A. 762, 48 Am. St. Rep. 579.

The general proposition stated above is not seriously controverted by the appellants, but they contend that the overflow from Otter creek onto the defendants' land is surface water, and that it may be repelled, in the interest of good husbandry. It may be doubtful whether the overflow onto the...