Miller v. Perkins
| Citation | 216 N.W. 27,204 Iowa 782 |
| Decision Date | 15 November 1927 |
| Docket Number | 38531 |
| Parties | SAMUEL J. MILLER, Appellant, v. CHARLES H. PERKINS et al., Appellees |
| Court | United States State Supreme Court of Iowa |
Appeal from Henry District Court.--JAMES D. SMYTH, Judge.
Suit to enjoin the defendants from obstructing the natural flow of water from the land of plaintiff. From an order by the court dismissing plaintiff's petition he appeals.--Affirmed as to Chicago, Burlington & Quincy Railway Company; modified and remanded as to other parties.
Affirmed as to Chicago, Burlington & Quincy Railway Company modified and remanded as to other parties.
McCoid McCoid & McCoid, for appellant.
La Monte Cowles, Carl M. Fischer, and Glenn F. Cray, for Charles H. Perkins, George C. Perkins, Executor, George C. Perkins and Alfred Erickson, appellees.
J. C. Pryor and W. D. Eaton, for Chicago, Burlington & Quiney Railway Company, appellee.
ALBERT, J. EVANS, C. J., and DE GRAFF, MORLING, and WAGNER, JJ., concur.
Defendant Perkins is the owner of three 40-acre tracts of land, lying in line, the north one half of the northwest one quarter of Section 10, and the northwest one quarter of the northwest one quarter of the same section. Adjoining Perkins' middle 40 on the north, plaintiff Miller owns an 80-acre tract, being the east one half of the southwest one quarter of Section 3. Between these two tracts of land is the right of way of the Chicago, Burlington & Quincy Railway Company. The plaintiff claims that the defendants are obstructing the natural flowage of water from his land to the south, and asks an injunction restraining defendants from so doing. The tracks of the defendant company are constructed on a fill, through which there is a culvert for the passage of water between these two tracts of land. Plaintiff claims that his land is the dominant estate, and that the water flows naturally to the south through this culvert onto the land now owned by the defendant Perkins. On Perkins' land is a swale or slough extending in a northeasterly and southwesterly direction. This water from the Miller land finds its way, after leaving the railroad culvert, across the land of Perkins to this swale, and thence flows in a northeasterly direction through the swale to right of way of the railroad company at a point somewhere near the intersection of the east line of Perkins' land with the railway company's right of way.
About the year 1909 or 1910, one Huston, the then owner of the Perkins land, obtained permission from the railroad company to construct a ditch on its right of way on the south side of the track, from a point at or near the outlet of the cement culvert, in an easterly direction, to intersect the aforesaid slough or swale at or near the point where it passes from the Perkins land on the company's right of way; and under this permission, Huston constructed such ditch; and also on the right of way of the railway company, south of the cement culvert, he constructed a dam, thus changing the course of the water that came from the Miller land, so that, instead of passing onto the Perkins land, it passed down this ditch along the right of way, and emptied into the aforesaid slough or swale, and continued thence on east on the right of way. The railroad company formerly had a pile culvert at this point; but, about the time this ditch was constructed, they put in a cement culvert, the bottom of which was on a level with the ditch constructed as aforesaid, and this water continued to thus flow from the Miller land through the culvert and eastward in this ditch for many years. Miller had two 8-inch strings of tile that emptied through a bulkhead on his land at or near the line between his land and the right of way of the railroad company. As time progressed, naturally this open ditch constructed by Huston along the right of way filled up largely by the action of the elements, and as a result the cement culvert filled. The company at various times cleaned out this culvert, and on some occasions, when high waters in the spring washed out the dam, the section hands of the company reconstructed the same. But, as the aforesaid ditch continued to fill, by the action of the elements and debris that was carried therein by the water, weeds and grass grew therein, and it became ineffective; and as a result, the culvert under the railroad filled with dirt and debris, until the space left was somewhere between 18 inches and 2 feet. This resulted in backing the water up on the Miller land, and destroying his crops in certain seasons; and it is for this flooding of his land that he asks this injunction.
It appears that, in 1924, George C. Perkins, who had then acquired title to the 120 acres herein described, wrote a letter to the railroad company, notifying it that he did not care to have the dam rebuilt or maintained; that he understood that Miller was complaining about the water's backing on his land; and that he (Huston) expected to hold the railroad company responsible for any...
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