Maben v. Olson, No. 32806.

• Court: United States State Supreme Court of Iowa
• Writing for the Court: SALINGER
• Citation: 187 Iowa 1060,175 N.W. 512
• Parties: MABEN ET AL. v. OLSON ET AL., BOARD OF SUP'RS.
• Decision Date: 12 December 1919
• Docket Number: No. 32806.

187 Iowa 1060
175 N.W. 512

MABEN ET AL.
v.
OLSON ET AL., BOARD OF SUP'RS.

No. 32806.

Supreme Court of Iowa.

Dec. 12, 1919.

Appeal from District Court, Hancock County; M. F. Edwards, Judge.

On the petition of some of the plaintiffs the defendant board proposed to construct a drainage improvement. The plaintiffs own lands lying on a lower level than the proposed outlet of said improvement. They obtained an injunction, restraining the construction of said improvement, and defendants appeal. Reversed and remanded.

[175 N.W. 513]

Ramsay & Blackstone, of Garner, for appellants.

Senneff, Bliss, Witwer & Senneff, of Mason City, for appellees.

SALINGER, J.

I. Lime creek is so located that the water from the district in question naturally drains into the creek, is a natural water course, and there is what may be deemed an inherent right to drain into such a course. In every natural water course there is an easement for the benefit of all land which naturally drains into the same. Railway v. District, 142 Iowa, 607, 121 N. W. 193. The right of drainage along such a course is an easement for the benefit of all land which naturally drains into the same. This right of drainage is a natural easement appurtenant to the land through which it runs, and every owner along such course must take notice of the rights that others have in such easement. Mason City Railway v. Board, 144 Iowa, 10, 121 N. W. 39. It was held in Railway v. Horan, 131 Ill. 288, 23 N. E. 621, and in Chicago Ry. v. People, 212 Ill. 103, 72 N. E. 219, and it is held in Tretter v. Railway, 147 Iowa, 375, 126 N. W. 339, 140 Am. St. Rep. 304, that one who builds a road or a bridge across a natural water course must make provision for the discharge of all water that may flow through the water course or bridge, though the amount of such water be afterwards increased by the construction of drainage. These are not, as appellee contends, decisions bottomed on the duty of a railroad company to conform its roadbed to the requirement of such public easements as ditches and drains--a duty incident to its right to construct and maintain its road. As we view them, they hold that the right to drain into a natural water course is an easement appurtenant to the lands, and that all must take notice of the fact that the drainage may throw more water into that natural outlet.

We do not understand appellees to deny that Lime creek is what we have just declared it to be. Their position is that there are limitations upon the use of such an easement, and that appellants have transcended such limitations. Appellees say, in argument, that defendants have gone beyond said limitations, because the enjoined improvement will, if permitted, burden servient estates, regardless of damage to them by collecting the water on part of a group of landowners above, and discharge same upon the lower land in immensely increased quantities. There is testimony that the total volume which the proposed drainage system will cast into Lime creek will be increased from 15 to 20 per cent., and that “not over 25 per cent. of the water which will go into Lime creek if the improvement is completed would reach that creek if the land drained by the district were left in its natural state.” We have grave doubts of the value of this testimony. But assume it to state a fact. On that assumption we have merely a dispute over the effect of this testimony. As to this the appellees contend: (1) That if the improvement be not stopped it will occur that the flow into Lime creek will become “accelerated”--the flow will be more rapid. (2) It may occur that more water will run into the creek than would go there if the improvement were not made. (3) This may cause an injurious overflow of lands belonging to the plaintiff such as has not yet occurred, and cause overflow where before there was none. Appellants concede that the proposed improvement will accelerate the flow into Lime creek; and the trial court declined to base the relief which it gave upon mere acceleration. It apparently has put its decree on the ground that the improvement would cause a more rapid flow, and also cause a greatly increased quantity of water to find outlet in Lime creek.

The controlling question then is this: Is it unauthorized and unlawful to establish a drainage district if so doing will cause water to come into the natural outlet for the district more rapidly and in greater quantity than if the land in the district were left to send its surface water into said outlet without interference by a drainage system, and it further appears that the increase in rapidity and volume may overtax the natural outlet and cause a damaging overflow to lands below the entrance into such outlet.

If the Constitution of the state expressly authorized the Legislature to give power to boards of supervisors to do what has just been described, and declared that the boards on such authority might do this even if thereby lower lands were overflowed, then, whatever might be said, it could not be that the Legislature had authorized doing, and that a board of supervisors was about to do, something violative of the Iowa Constitution. If the Constitution of the state expressly empowered boards of supervisors to do certain things with reference to drainage products, and expressly stated that these things might be done no matter what the consequences to lower lands would be, the doing of what the defendant board is doing would, whatever it might be, not lack for sanction by the Constitution. Now, that instrument does not say

[175 N.W. 514]

in express terms that the Legislature may give power to boards of supervisors to drain lands into a natural outlet; that it may do this though it increase the speed and quantity of what will reach such outlet, and may do this if thereupon shall arise a peril that lower lands will be overflowed. That instrument says less than this, and yet more than this. It is broader than this, because while it does not in words permit such acceleration, increase, or exposure to peril, it puts no limitation on the power granted. So far as exercise of power violative of the Iowa Constitution is concerned, if that instrument permitted boards of supervisors to do what these defendants propose to do, without providing any remedy for lower landowners or any compensation for them, the act of the board would still not be violative of the Iowa Constitution. As said, the constitutional provision has no limitations. The amendment to Const. art. 1, § 18, is plenary. It gives to the General Assembly the power to pass laws, vesting in the proper authorities the power to construct and maintain levees, drains, and ditches, and to keep all drains heretofore constructed under the laws of the state in repair. Manifestly, nothing in this grant prohibits the Legislature from empowering a board of supervisors to do just what appellees say the improvement in distributing here will do. Indeed, it has not, as we understand it, been suggested that what is proposed is violative of any Constitution. So the next step in the inquiry is whether the Legislature has authorized that which the defendant board proposes to do. Again not in terms. Again in terms so broad as to give the board power to do not only this thing, but much more. This breadth once more exists through want of limitation. The statute authority authorizes the boards of supervisors to establish drainage districts, and to cause ditches and drains to be constructed. Section 1989A1, Code Supplement 1913. And it is further enacted that all the provisions on drainage shall be construed liberally, to promote reclamation of wet, overflowed agricultural lands by means of drainage. Id. § 1989A46. Not only is this liberal construction imposed by statute mandate, but the courts have held time and again that the exercise of power under such delegation as this is in such sense a legislative act as that the courts will review the propriety of such act with the greatest reluctance only; that they will in such review stay within the narrowest possible lines, and will give all reasonable effect to the presumption that the board has properly exercised the power to do such legislative act. It is unquestionable that primarily the board of supervisors has power to drain into a natural outlet.

Primarily, the question whether draining into such outlet is a proper improvement harks back to the legislative aspect of the action, wherefore it must be presumed in the first instance with a presumption that is not easily rebuttable that a drainage system taking water into a natural outlet is rightly established.

So the matter would seem to reduce itself to the inquiry whether so plenary a delegation of power, so strongly presumed when exercised to be rightly exercised, may be interfered with by a court of equity because through its exercise a more rapid and a greater...