Merrill v. Bd. of Sup'rs of Cerro Gordo Cnty.

• Decision Date: 09 March 1910
• Citation: 146 Iowa 325,125 N.W. 222
• Parties: MERRILL ET AL. v. BOARD OF SUP'RS OF CERRO GORDO COUNTY ET AL. (STATE, INTERVENER).
• Court: Iowa Supreme Court

146 Iowa 325

125 N.W. 222

MERRILL ET AL.

v.BOARD OF SUP'RS OF CERRO GORDO COUNTY ET AL. (STATE, INTERVENER).

Supreme Court of Iowa.

March 9, 1910.

Appeal from District Court, Cerro Gordo County; J. F. Clyde, Judge.

The petition alleged the construction of a spillway in the outlet of Clear Lake by the board of supervisors of Cerro Gordo county, and prayed that said board be enjoined from interfering in any way with the outlet or the flow of the water through it. A demurrer to the petition was sustained, but plaintiffs were permitted to bring in other parties as defendants by amendment. This was done, and the state of Iowa filed a petition of intervention, alleging the ownership of the bed of the lake, praying like relief, and that it be authorized to erect and maintain a permanent embankment, bulkhead, headgates, and sluiceways for the purpose of retaining the water in the lake at high-water level. An answer was filed, joining issue and praying that all obstructions be removed from the outlet, and that it be safeguarded as nearly as practical as it was in its natural condition. On hearing, decree was entered as appears in the opinion. The plaintiffs appeal. Modified and affirmed.Cliggitt, Rule, Keeler & Smith and Blythe, Markley, Rule & Smith, for appellants.

H. W. Byers, Atty. Gen., Chas. W. Lyon, Asst. Atty. Gen., and J. E. E. Markley, for the State.

Glass & McConlogue, Robert Witwer, and Ira W. Jones, for appellees.

LADD, J.

The township containing Clear Lake was surveyed by the government in 1853. The deputy surveyor, Samuel W. Durham, remarked in his report on many features “calculated to render it curious and interesting, the most prominent of which is the lake, which is a very romantic place.” It is described as five miles long, and two miles and ten chains as its greatest breadth, the water as clear and pure, “kept free from miasmatic vapor by the motion of the waves, which whenever the wind blows roll and dash against the shores.” Adjacent to the prairie on the south side were said to be curious embankments, generally from 3 to 10 feet high and 3 to 10 feet wide, which “contain some large round pebble stone of some tons weight. There is a beach extending most all around the lake, except the south side adjacent to the timber, where the bank is bold, rough, and rocky. The lake heads in a marsh and the precise point of division is undefined. It is said to rise some 18 inches in the spring, and flows out through the outlet in a current.” But according to the field notes the outlet was then dry and “six inches above low-water mark.” Settlement had already begun, and several of the pioneers who established their houses on the shores in that and succeeding years testified to the changes wrought since. The locality has become a resort for persons seeking pleasure, recreation, and health, so that while the owners of farms near by or bordering the lake are directly interested in having the water at a low level to avoid overflows, and so that the lands will drain into the lake, the owners of summer cottages on every shore, except at the west end, and others interested in it as a resort, desire that the water be maintained at a high level, thereby the better to foster boating, protect fish and game, and preserve the natural scenic conditions of the lake. Because of this conflict of interests, attention has been directed to the outlet as in a measure controlling the water level, and the only fact necessarily to be ascertained in this suit is the precise elevation of the bottom of the outlet as it was in its natural condition. Since the original survey, several incidents have occurred which may have affected the volume of the outflow. Thus water was drawn through it into a mill race for many years, operating first a sawmill and then a flourmill, but the last of these was abandoned in 1887. The mayor of the incorporated town of Clear Lake, though utterly without authority, drove pile and put in plank in 1901, and two years later the board of supervisors of Cerro Gordo county, without any better right, constructed a cement spillway in the outlet, with a view of regulating the water level of the entire lake. The pile and plank have disappeared, but a portion of the spillway remains. Originally it was 22 feet long, with walls a foot wide, extending 3 feet below the upper surface of the bottom, which was a foot thick and 3 feet above, and these were several feet apart. At the west end (toward the lake) were grooves in the walls, and two planks each 13 inches wide and 3 inches thick were inserted therein and fastened down by rods. Before this was put in only a little water was seeping through, and there was no channel in the outlet. The bottom of the spillway was placed about a foot below the surface of the outlet, and from that to 18 inches below the water level of the lake. When completed, water flowed through the way rising above the plank, but shortly afterwards these were sawed by some unknown person, and later the west end of the spillway was wrecked by dynamite. The bottom of the spillway is somewhat higher at the east end, and the district court “decreed that the original high-water level of Clear Lake was...