Wharton v. Stevens

• Decision Date: 17 December 1891
• Citation: 50 N.W. 562,84 Iowa 107
• Parties: L. J. WHARTON, Appellee, v. JOSHUA STEVENS, Appellant
• Court: Iowa Supreme Court

50 N.W. 562

84 Iowa 107

L. J. WHARTON, Appellee, v. JOSHUA STEVENS, Appellant

Supreme Court of Iowa, Des Moines

December 17, 1891

Appeal from Mahaska District Court.--HON. D. RYAN, Judge.

ACTION in chancery to enjoin the defendant from maintaining a dam or obstruction to the flow of water, erected by him across a ditch in a swale leading from the plaintiff's land through that of the defendant. Upon a trial on the merits there was a decree granting the relief sought in the plaintiff's petition. The defendant appeals.

Affirmed.

J. F. & W. R. Lacey and Seevers & Seevers, for appellant.

The filling up of the lower land will not render the owner liable to the owner of the upper land, although the filling should stop the flow of mere surface water. Goodale v Tuttle, 29 N.Y. 467; Pettigrew v. Evansville, 25 Wis. 223; Washburn on Easements [3d Ed.] 459; Gannon v. Hargadon, 10 Allen, 106. A landowner has not the right to concentrate surface water in a tile drain and cast it on his neighbor's premises. Livingston v McDonald, 21 Iowa 161; Goddard on Easements [Bennett's Ed. 1888] 241; Washburn on Easements [3d Ed.] 459; Goodale v. Tuttle, 29 N.Y. 467; Pettigrew v. Evansville, 25 Wis. 228; Miller v. Lanbach, 47 Pa.St. 155; Butler v. Peck, 16 Ohio St. 334; Dickinson v. Worcester, 7 Allen, 22; Bowlsby v. Speer, 31 N. J. Law, 354; Washburn on Easements [3d Ed.] 282, 283, 284, 453, 454, 455, 456, 457, 458, 459, 460, 461, 462; Flagg v. Worcester, 13 Gray, 601; Wheeler v. Worcester, 10 Allen, 603; Franklin v. Fisk, 13 Allen, 311.

Blanchard & Preston, for appellee.

The law of this case is fully covered by the case of Vannest v. Fleming, 79 Iowa 638. The rule established by this court is abundantly sustained by the decisions of other courts, some of them going much further. McCormick v. Horan, 81 N.Y. 86; Jeffers v. Jeffers, 107 N.Y. 650; Peck v. Goodberlett, 109 N.Y. 180; West Cumberland Iron & Steel Co. v. Kenyons, L. R. Ch. Div. 782; Anderson v. Henderson, 124 Ill. 164; Pratt v. Lamson, 2 Allen, 275; Ford v. Carbon Iron Mfg. Co., 42 N.J.Eq. 157; Penn. Coal Co. v. Sanderson, 113 Pa. 126; Kauffman v. Griesmer, 26 Pa.St. 407, 415; Osburne v. Connor, 46 Cal. 346; McDaniels v. Cummings, (Cal.) 22 P. 216. The owner of the upper field may improve and drain it for agricultural purposes or the like, and in so doing may increase the flow of water in the natural channel for it. Davidheiser v. Rhodes, (Pa.) 19 A. 401; Taylor v. Feckas, 64 Ind. 173; Wells v. City of Madison, 75 Ind. 241.

OPINION

BECK, C. J.

I.

The facts of the case, as shown by the undisputed evidence or a satisfactory preponderance thereof, are not at all intricate, and, briefly stated, are as follows: The farms of the parties join. A swale, having branches upon the plaintiff's farm, extends into and through the defendant's farm. The rain and snow water collected on the plaintiff's land by the natural depression flows in the swale across the defendant's land, finding its discharge in a creek or brook beyond. There are no springs upon the plaintiff's land. The breadth of land which these swales drain is shown to be about eighty rods, and the hills and elevated lands on each side are about fifteen feet high. There is a ditch in the swale washed out by the natural action of the water, which is shown to be three feet deep. It extends to and upon the defendant's land for some distance, but not through his farm. The plaintiff has put tiling along the swales, there being two drains at proper distances from the middle of the swale, so as to catch the seep at or near the foot of the declivity along the swale. These drains, uniting at the main swale, extend to within three feet of the defendant's land, and discharge there into the ditch. The source of these drains is shown to be fifteen feet higher than the mouth. The defendant, a few feet below his line, filled up the ditches, and constructed an embankment over it for a roadway, putting in a small wooden culvert, which, he testifies, is about as high as the surface of the ground. Other witnesses declare it is considerably higher. While the embankment was so constructed as to be used for a road, it was doubtless erected for the primary purpose of arresting the flow of water, and raising it above the mouth of the plaintiff's drain, thus interfering with their usefulness. Before the dam was erected, the drains answered the purpose of their construction; after it was built, they in a great measure failed, as the water could not flow from them freely, but was backed into them for some distance. The dam created a pond extending upon the plaintiff's land to some extent.

II. The controlling question in the case involves the right of the defendant to maintain the dam across the ditch and swale, so as to interfere with the free flow of water from the plaintiff's drains. It must be kept in mind that the ditch in question was the result of the action of the water in accord with nature's laws, and that the swale was the water course provided by nature for the escape of water from the plaintiff's land. Neither was artificial. See Vanneat v. Fleming, 79 Iowa 638, 44 N.W. 906. It will not be pretended that the defendant could arrest the flow of the water down the swale, if nature, by the action of the water, had made no ditch there. If he could build a dam one foot high, throwing the water back upon the plaintiff's land, he could build it fifteen feet high, did his notions as to the demands of his interest, or his desire to injure the plaintiff, prompt sufficient outlay of labor or money, and he could thus convert the plaintiff's valuable land into a marsh or pond. This dam, the building of which he justifies in this case, does this very thing in a limited degree. But, as we have said, he does not claim to build a dam higher than the natural surface of the swale. He admits the right of the plaintiff to demand that no impediment shall be erected against the flow of the water over the surface of the natural swale, but denies his right to conduct water in the ditch, which is, as well as the swale, a natural drainage way for the plaintiff's land. Vanneat v. Fleming, 79 Iowa 638, 642, 44 N.W. 906. It would be a bold counsel who would advocate, and a bold court which would decide, that water from rains and thawing snows, which is called by counsel "surface water," when it finds the swales provided by nature to bear it away, may be arrested in its natural course, and made to flow back upon the land which these swales are intended to drain. The effect of such a decision would be stupendous. It would subject millions of acres of the best agricultural land to destruction. It would bring strife, with loss and poverty to a vast number of farmers of the state. But no counsel asks such a decision and no court would make it. But counsel do maintain that, where nature has provided a ditch in these swales, the landowner may dam up the water and throw it back upon the land of his neighbor, and in that way prevent the use of his tile drains and create ponds thereon. This doctrine, if recognized by this court, would forever prevent tiling in swales (the great benefits of which are known to all, and abundantly shown in the evidence in this court), except in cases where the consent of the adjoining proprietors is obtained. This court is not prepared to recognize a rule so detrimental to the interests of the state, and in conflict with sound legal principles and precedent. It has held the contrary doctrine, that the drains may be used to carry water accumulating in swales--surface water--and discharge it upon low lands crossed by such swales, which are nature's drains and waterways. Vanneat v. Fleming, 79 Iowa 638, 44 N.W. 906. See Washburn on Easements [3d Ed.] 450, 452, 453.

III. The water caused by the swales is called by counsel "surface water," and this talismanic word seems in some cases to take the place of reason and principle in the support of the right of the lower proprietor to throw back upon the higher land the water flowing in ditches washed out by the natural action of the water. The books often announce the rule that the landowner may fight surface water, which is a common enemy, and keep it off his land, and even throw it upon his neighbor, or back upon the land from which it flows. But the books do not hold that this may be done when there is a waterway over which the water naturally flows. It may be that the language of some cases is so general that it will bear an interpretation to that effect when nothing of the kind was meant, and no such point was in the case. Counsel cite this language in Washburn on Easements [3d Ed.] found on page 459, viz.: "The common law allows the proprietor of lower tenants to obstruct the natural flow of surface water from higher ground upon it and in so doing may turn it back upon, or off, onto or over the lands of the other proprietors." It will be discovered, by a little consideration, that this is not the language of the author, but is a citation from a Wisconsin case; and, moreover, that it authorizes a proprietor to turn surface water upon the lands of adjoining owners, the very thing which is the defendant's ground of complaint against the plaintiff. Upon this language the plaintiff may turn the water in question "onto or over" the lands of the defendant. The doctrine is clearly laid down on pages 451-453, and elsewhere, by this authority, that the lower proprietor cannot prevent the flow of rain water from the higher lands through natural depressions and channels. There is apparently a conflict of authorities on this point which is not real, resulting from the undefined use of the words "surface water." When such water flows by a well-defined and natural course upon lower lands, that flow cannot be interfered with...