Spence v. McDonough

• Decision Date: 16 May 1889
• Citation: 77 Iowa 460,42 N.W. 371
• Parties: SPENCE ET AL. v. MCDONOUGH.
• Court: Iowa Supreme Court

77 Iowa 460

42 N.W. 371

SPENCE ET AL.

v.MCDONOUGH.

Supreme Court of Iowa.

May 16, 1889.

Appeal from district court, Delaware county; JOHN J. NEY, Judge.

Action in equity to enjoin defendant from damming and polluting the water of a stream. There was a trial, and a decree in favor of plaintiffs. The defendant appeals.Yoran & Arnold, for appellant.

Herrick & Doxsee, for appellees.

ROBINSON, J.

The parties to this action own adjoining farms, which are devoted in part to the business of stock raising. These farms are intersected by a water-course, which in ordinary seasons contains a stream of water which flows from the farm of defendant southward across the land of plaintiffs, and is sufficient for the stock of plaintiffs and defendant. In the spring or early summer of 1887, defendant constructed a dam across this water-course, a few feet north of the land of plaintiffs, which had the effect to create a pool of water 6 or 8 inches deep, 15 or 20 feet wide, and 5 or 6 rods long. That dam was afterwards replaced by another, made in part with a large watering trough, but the effect was about the same as that of the first dam. It is claimed by plaintiffs that the dam obstructs the flow of a natural and permanent stream, to their damage; that if it were unobstructed it would furnish all the water needed for their stock, as it had done for many years previous to the building of the dam, but that the dam has so obstructed the flow of water that it is insufficient for their stock; that when the flow is not entirely stopped the water is so impure in consequence of the acts of defendant as to be unfit for the use of stock. Defendant admits the construction of the dams, but insists that they were made necessary by lack of rains in 1887; that he did no more in constructing them than was necessary to obtain a sufficient supply of water for his own stock; and that the diminished flow onto the land of plaintiffs was not due to any unauthorized act on his part.

The evidence shows that the season of 1887 was unusually dry; that the stream in question was much affected by the drought; that in the driest time most if not all the water collected by defendant came from springs on his own land, and that his device for obtaining a supply of water was a common one, and that it did not give a greater supply of water than his stock required. Some of the evidence tends to show that at times a scum formed on the surface of the pool above the dam and flowed thence onto the land of plaintiffs. The decree rendered by the district court perpetually enjoins defendant “from so damming or obstructing the natural flow of the water in the creek” where it crosses the land of defendant above that of plaintiffs, “as that the same shall become stagnant or foul in any manner, so that the water shall be unwholesome for the use of plaintiffs' stock.” The decree, by necessary implication, holds that defendant had a right to construct the dam. Since plaintiffs do not appeal, that must be regarded as the law of this case, and we are only required to determine whether the law and the evidence justify the limitation fixed by the decree, which is, in effect, that the natural flow of the stream shall not be so obstructed as to render the water which flows from the obstruction onto the premises of plaintiffs unwholesome for the use of their...