Pascal v. Hynes

• Decision Date: 10 April 1915
• Docket Number: 30125
• Citation: 152 N.W. 26,170 Iowa 121
• Parties: D. L. PASCAL et al., Appellants, v. AGNES HYNES, Appellee
• Court: Iowa Supreme Court

152 N.W. 26

170 Iowa 121

D. L. PASCAL et al., Appellants, v. AGNES HYNES, Appellee

No. 30125

Supreme Court of Iowa, Des Moines

April 10, 1915

Appeal from Clinton District Court.--HON. A. P. BARKER, Judge.

Affirmed on plaintiffs' appeal, reversed on defendant's appeal.

Ellis & McCoy and Pascal, Pascal & Pascal, for appellants.

Wolfe & Wolfe, for appellee.

LADD J. DEEMER, C. J., GAYNOR and SALINGER, JJ., concur.

OPINION

THE facts appear in the opinion. Both parties appeal. Affirmed on plaintiffs' appeal. Reversed on defendant's appeal.

LADD J.

Plaintiffs own the W1/2 NW1/4 of Section 9 and the defendant, the E1/2 of said quarter and the E1/2 SW1/4 of Section 4, immediately above it. Between the sections is a highway which has been graded so as to be about 3 1/2 feet above the natural surface. Near the southwest corner of the 80 in Section 4 was a pond of about two acres. Across the road to the southeast was a smaller pond. A swale extended from near these ponds in a southwesterly direction into the land of plaintiffs and then southerly for a distance of about 80 rods, emptying into a larger pond of about 3 acres, mostly in the plaintiff's land, but somewhat over the line on that of defendant.

The evidence leaves no doubt that there was a natural watercourse extending from a point in plaintiff's land about 50 feet south of the highway south to the pond last mentioned, with a fall of nearly 25 feet, and we are satisfied such watercourse originally extended across the northwest corner of defendant's south 80 into the highway and drained the surface water settling in the pond in her north 80. But this cannot be ascertained definitely from the record before us, though apparently believed by the engineer. For many years prior to the trial, the road had been graded and the water from the north pond carried through a culvert therein and along a ditch on the south side of the highway about 80 feet west, and from that point the water passed southwest into plaintiff's land down the swale. The small pond immediately south of the highway was drained into this ditch on the south side of the road. In 1895, Martin Hynes (defendant's father-in-law, through whom she acquired the land), with the consent of George Pascal (plaintiffs' father, from whom they derived title), excavated a ditch from the culvert along the road across his south 80 into plaintiffs' land, about 10 rods, and laid tile therein. The water from this tile caused a mudhole, and in 1904, defendant's husband, then owner of the land (she subsequently took under him), in pursuance of an agreement with plaintiffs, through D. L. Pascal, extended the tile drain to the pond on the line about 80 rods south of the highway, and the following year, additional tile was laid so as to cast part of the water into the pond on defendant's side of the line. As said, the tiling last done was in pursuance of an agreement entered into by plaintiff D. L. Pascal and one Jensen, representing defendant's husband. Pascal testified that it was agreed "that if I would not stop up the tile and let it go until after they got the crop in, and would allow them, until after they got the crop of corn in, allow them to carry this water down the natural watercourse to this pond they would build a fence around it whenever I got ready to tile to the pond, and he would go ahead with it and see that one-half the expense was borne by Mr. Hynes. . . . that he should keep this ditch in repair and maintained. That is all the tile drain mentioned as having been laid." Donahue testified that "after we put the tiling in I know Hynes wanted Mr. Pascal to give him some record about the tile. He asked Mr. Pascal if he was satisfied, and Mr. Pascal said yes he was perfectly satisfied. And he wanted him to give him some writing about it. Mr. Pascal said he would not because he said if there became any holes in the tiling he expected Mr. Hynes to fix them, and Mr. Hynes said that would be all right." The tiling drained out the ponds near the highway, but plaintiffs claim that defendant did not keep it in repair, D. L. Pascal testifying that: "The dirt was washed off in one place in particular and there were other places where there were holes where the dirt was gone and it made holes in the tile. When a heavy rain came the water would come out, boil up out of those places, and there was danger of the stock stepping in those places and getting hurt; horses were in there. Holes have been there at different times. In the fall of 1910 there were at least six of them. In 1908 there was a place over there at the road where the dam was built. In 1908 I fenced around this one place to keep the cattle from destroying the tile. We put the fence there some time about the first of May, 1908, and I moved it in the fall of 1909. I took the fence down and hauled dirt to cover the tile up. There were holes there in 1912. They had sent some men in my field to repair the ditch; they filled it up in places and dug down into the holes and banked it up."

In 1909 and 1910, plaintiffs laid a tile drain, from the pond into which that previously mentioned emptied, southerly into a ditch in the southwest quarter of the section, and D. L. Pascal for them stopped the tile defendant had laid a few rods west of the line fence in their land in or near the lower pond. The obstruction was removed by an employe of defendant in 1912, but again replaced by Pascal. Thereafter, defendant began laying a drainage tile connecting with that at the lower pond in her land and extending north to the tile carrying the surface water from her north 80, when this action was begun, aided by a temporary writ of injunction restraining her from proceeding. A cross-petition was filed praying that plaintiff be restrained from interfering with the tile drain laid by her husband and father-in-law in plaintiffs' land, and from preventing defendant's entering on their land for the purpose of repairing and maintaining the same. On hearing, the court dismissed both the petition and cross-petition, and both parties appeal.

I. The tile drain constructed by Martin Hynes in 1893 carried the water from the pond north of the road into the swale on plaintiffs' land. The drain was laid with the then owner's consent and the surface water carried through it from defendant's land, as well as part of plaintiffs', with the acquiescence of the latter, the then owner under whom they claim, until 19...