O'Mara v. Jensma

• Decision Date: 03 June 1909
• Citation: O'Mara v. Jensma, 143 Iowa 297, 121 N.W. 518 (Iowa 1909)
• Parties: JERRY O'MARA, Appellant, v. JAMES JENSMA
• Court: Iowa Supreme Court

121 N.W. 518

143 Iowa 297

JERRY O'MARA, Appellant, v. JAMES JENSMA

Supreme Court of Iowa, Des Moines

June 3, 1909

Appeal from Jasper District Court.--HON. BYRON W. PRESTON, Judge.

ACTION for damages, in which the defendant set up a counterclaim.Judgment was entered for the defendant, from which the plaintiff appeals.

Affirmed.

Tripp & Tripp, for appellant.

Mowry & Cross, for appellee.

OPINION

LADD, J.

The plaintiff owned the N. 1/2 of S.W. 1/4 of section 12, and the defendant the N. 1/2 of S. E. 1/4 of the same section.There was a depression or a swale through the plaintiff's land and on through that of the defendant to the southeast.Previous to the defendant's acquisition of the land, a ditch had been excavated in the plaintiff's land through that of defendant which appears to have carried the water off.Prior to that a ditch had been dug under the fence about two rods north by the plaintiff and the then owner of defendant's land, Lavelleur.This according to Lavelleur, was filled up when the ditch first mentioned was excavated, though plaintiff says it was left open.Both testified it was a failure.There may have been a swale still farther north, but no evidence of injury therefrom was adduced.In excavating the ditch last made in plaintiff's land, the earth was thrown on both sides, but only on the north side on defendant's land, with the design of preventing the water from flowing on the low ground north of the ditch.Also defendant's grantors back-furrowed from the ditch to the north line, creating a rise of several inches.This was reversed by defendant, who turned the furrows toward the line to level the land.Plaintiff testified that this tended to stop the free passage of the water and in connection with other testimony that defendant by back-furrowing and by the use of the spade constructed a levee from ten to twenty or thirty feet east of the line, and also filled up the ditch under the fence thereby throwing the surface water back on plaintiff's land to his damage; while evidence of defendant explained how he had turned the furrow toward the line, that he had not filled the ditch, and, if clogged, this was due to the accumulation of debris therein without fault on his part, and that the water had not backed up on plaintiff's land as alleged, but stood there naturally.In support of his counterclaim, the evidence tended to show that openings through the north bank of the ditch had been cut letting the water through on defendant's land to his damage.The evidence was such as to carry the several issues to the jury.

I.In stating the issues to the jury, and in several instructions, the court referred to the embankment or levee as alleged by plaintiff to have been located and maintained "along or on" the west line of defendant's land, and appellant insists that this was erroneous, as the petition described levee as "along or near," and the evidence disclosed that it was ten or twenty feet east of the line fence.There was no evidence of any embankment on the line, and the only evidence of any embankment or levee constructed by defendant pointed to that mentioned by the witness as some distance east of the line.The jury could not have understood the court's statements to have had reference to any other levee, and no prejudice could have resulted even were the description inaccurate; but, according to the lexicographers, when used as indicating relative situation or position, "on" means at, near, or adjacent to, without implying contact or support.29 Cyc. 1484;Burnam v. Banks, 45 Mo. 349.And in connection with the evidence the language of the instruction plainly referred to the alleged levee near the line fence.

II.The court told the jury in substance, that if the parties farmed and plowed their land adjacent to the main ditch in such a way as to drain the water into it, and this was the understanding of the parties, then such plowing and back-furrowing should be considered a part of the ditch.Exception is taken to this because not supported by the evidence and misleading.The defendant's grantors had back-furrowed from the ditch to the north line.This naturally tended to drain the water south into the ditch.The furrows had been turned toward the line fence on plaintiff's land, and near the fence it was considerably higher at most places than defendant's land.This would have a tendency to direct the course of the surface water and not only supported the instruction, but also warranted the giving of the seventh paragraph of the charge.Moreover,...