Miller v. Hester
| Decision Date | 22 October 1914 |
| Docket Number | 29316 |
| Citation | 149 N.W. 93,167 Iowa 180 |
| Parties | SYLVESTER MILLER, Plaintiff, Appellant, v. A. E. HESTER, Defendant |
| Court | Iowa Supreme Court |
Appeal from Jones District Court.--HON. F. O. ELLISON, Judge.
ACTION to enjoin the defendant from maintaining tiling on his land the effect of which was to gather surface water from defendant's land into a swale or depression thereon, from which it passed onto plaintiff's land to the plaintiff's injury.
Affirmed.
C. J Cash and Herrick & Rhinehart, for appellant.
C. J Lynch, for appellee.
Plaintiff and defendant own land, in the same section. Plaintiff's land is immediately east of the middle line of the section, and defendant's land immediately west; the half section line being common to both tracts. Defendant's land is in the southwest quarter, and plaintiff's land in the southeast quarter. The center of the section is common to both tracts. A swale, or slough, or draw, runs through the defendant's land in an easterly direction, crossing the boundary line between plaintiff's and defendant's land, and extending into plaintiff's land a distance variously estimated by the witness from five to fifteen rods. This swale or slough is marked on either side by ridges, and the natural flow of the water is along this course towards and onto the plaintiff's land. In the spring of 1910, the defendant undertook and did put in two lines of four-inch tiling on either side of this draw all on his premises, and conducted the water down to within about sixty feet of the line between his land and the plaintiff's, and there discharged it again into a natural swale or depression, from which point, in the natural course of drainage, it was carried onto plaintiff's land. This depression in the swale was at the place where defendant's tile emptied. The plaintiff's land is all lower than the defendant's land, and the water flowing in this draw or slough in the natural course of drainage goes onto plaintiff's land, by reason of the natural slope of the ground, and this tile drains no other land than would naturally drain into this slough or depression. The natural and final outlet of all water that comes down this slough or swale is a creek several rods east of the half section line. It appears that, prior to this time, plaintiff had tiled his land commencing at a point somewhat east of his section line and running eastward. These tiles were evidently put in for the purpose of carrying off the water that came down the swale or slough from defendant's land. In the spring of 1911, it appears there was a very heavy rain in that section of the country, and the water came down through this swale or draw onto plaintiff's land, and washed out or filled his tile, and he claims flooded his land to some extent, and he brings this action now to enjoin the defendant from continuing the use of his tiling, and from concentrating the water on his premises by means of tiling and casting it upon the plaintiff. There was a decree dismissing plaintiff's petition, and plaintiff appeals.
The determination of this case involves the proper construction of section 1989-a53 of the Code Supplement, which reads as follows:
Owners of land may drain the same in the general course of natural drainage, by constructing open or covered drains, discharging the same into any natural water course, or into any natural depression, whereby the water will be carried into some natural water course, and when such drainage is wholly upon the owner's land, he shall not be liable in damages therefor to any person or persons or corporation.
This section has been up to this court for construction before, and the object and purpose of its enactment considered and discussed. One of the latest expressions is found in Jontz v. Northup, 157 Iowa 6, 137 N.W. 1056. The facts in that case are very similar to the facts in the case at bar, and the construction of this statute, therein recognized and approved, would seem decisive of the controversy in this case.
The evidence in this case discloses beyond a question that the general course of natural drainage on defendant's land is along this swale, extending through defendant's land into and upon plaintiff's land; that all the tiling done by the defendant was upon his own land; that he discharged the water in a natural depression upon his own land, that the water from this natural depression, by natural course of drainage, is carried to a natural water course.
As said in Hull v. Harker, 130 Iowa 190, 106 N.W. 629:
To constitute a natural water course, it is not necessary that the flow of water through it shall have been
The statute here under consideration was adopted by the Legislature in full recognition of the rules heretofore promulgated by the courts touching the rights of dominant and servient owners as to the disposition of surface water, and, no doubt, in the passage of this statute they had in mind the reclamation of low and wet land, that the same might not be lost to use, and adopted the rule therein promulgated in the interest of good husbandry and public welfare. The courts have recognized this disposition on the part of the lawmaking power, and in all cases, following the passage of this act, have construed the statute with great liberality that the purposes for which it was enacted might be made effectual.
Since the decision of Livingston v. McDonald, 21 Iowa 160 this court has been wrestling with the law of surface water. Some of the cases have approved and...
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