Witthauer v. City of Council Bluffs

• Decision Date: 09 February 1965
• Docket Number: No. 51361,51361
• Parties: Owen WITTHAUER, Appellant, v. The CITY OF COUNCIL BLUFFS, Iowa, a domestic municipal corporation, Appellee.
• Court: Iowa Supreme Court

Page 71

133 N.W.2d 71

257 Iowa 493

Owen WITTHAUER, Appellant, v. The CITY OF COUNCIL BLUFFS, Iowa, a domestic municipal corporation, Appellee.

No. 51361.

Supreme Court of Iowa.

Feb. 9, 1965.

Porter, Heithoff & Pratt, Council Bluffs, for appellant.

David E. Stuart and John M. Peters, Council Bluffs, for appellee.

HAYS, Justice.

Appellant, lessee of approximately 243.47 acres of land lying directly west of a northwest-southeast Union Pacific Railway right of way in Section 34, Township 75, Range 44 West, and Section 3, Township 74, Range 44 West, in Pottawattamie County, Iowa, commenced this equity action January 16, 1961, asking for a mandatory injunction requiring the defendant city of Council Bluffs to remove its landfill, occupying about 18 acres of a 25-acre city tract, which abuts plaintiff's land on the north, east and south, and to restore the pre-existing conditions, for a permanent injunction restraining defendant from maintaining the landfill, and for damages as a result of crop losses during the years 1959 and 1960 in the sum of $20,858.64. In his petition he claimed by the operation of the landfill defendant wrongfully obstructed the flow of surface water so as to flood a large portion of land he had leased from the Union Pacific Railroad Company. Defendant denied interference with the natural flow or passage of surface waters in the area or obstruction of the natural drainage in any way.

The trial court held plaintiff had failed to prove the allegations of his petition by a preponderance of the evidence and entered a decree in favor of the defendant. In this appeal appellant questions all rulings adverse to him, but principally relies upon five stated propositions for reversal.

Our review is de novo. Rule 334, R.C.P., 58 I.C.A. Nevertheless, in cases such as this where there are some 30 plats and photographs used in connection with the testimony of various witnesses, and where the trial court visited and viewed the area involved with both counsel to get a better understanding of the evidence, we should give weight to the factual findings of the trial court, and do so here. Eppling v. Seuntjens, 254 Iowa 396, 399, 117 N.W.2d 820.

In an effort to orient the plaintiff's and defendant's land with other landmarks in the area, we attach a rough plat designating plaintiff's leased land as Tract A, defendant's landfill as L.F., and the railroad tracks as R.R., etc.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Plaintiff has been a lessee or co-lessee of Tract A since 1944. The city tract some 2229.4 feet in length and 510.4 feet wide abuts the Borman farm and the south section line of Section 34, Township 75 North, Range 44, on the south. Plaintiff has farmed his tract in the past raising both wheat and corn. Due to high water he lost a large part of his 1959 crop and all crops during 1960.

Defendant commenced the use of its Tract L.F. as a sanitary landfill in 1945, and in recent years this use has increased. At the time of this action some 18 acres had been filled on the west, south and east ends of the tract. The filled portion is considerably above the original surface and the surface of adjoining land. A drainage ditch dug by defendant along the south line empties onto Tract A. A smaller ditch appears along the north line, also emptying onto Tract A. The slope of this landfill is to the south, reversing the slight slope to the north of the original surface. However, according to several witnesses, the surface waters flowing south reach the same general location on Tract A, for instead of flowing north and east over the landfill tract prior to the fill, they flow some 2200 feet east and then northeast on Tract A to the impounding area.

In 1955 plaintiff's landlord, the Union Pacific Railroad Company, used a large portion of Tract A as a borrow pit for roadbed work, removing between 2 and 4 feet of top soil from this land before it was regraded and definitely sloped toward the north and east next to the railway right of way.

Appellant's principal contention below and here is that the low spot in this area, originally called 'Weedy Lake', was located on the city tract, and by filling this area the natural flow of surface waters was obstructed, structed, causing them to back up and cover large areas on his tract. Thus, two very important fact questions are presented: (1) Where was the low spot called 'Weedy Lake' prior to the grade changes by defendant and plaintiff's landlord? (2) Did these changes substantially alter the directional flow or the volume of surface waters affecting this area?

I. It was plaintiff's burden to prove his land was the dominant estate and, failing in that, to prove that changes made in the surface of the landfill changed the general direction of the flow or substantially increased the volume of surface water cast upon his land to his damage. Schmitt v. Kirkpatrick, 245 Iowa 971, 977, 63 N.W.2d 228; Section 465.22, Code 1958, I.C.A.

The disposition of ordinary surface water, of course, is determined by the relative elevations of adjacent tracts. Downey v. Phelps, 201 Iowa 826, 832, 208 N.W. 499.

The trial court found the low area, or 'Weedy Lake', was at all times material to this action located north and east of defendant's tract, and the alterations referred to made no material change in the flow or vollume of surface water in that area which could be chargeable to defendant.

We have carefully read the record, examined the exhibits, and noted the extensive review of the evidence in the briefs. Although this appeal presents principally a factual determination, there being no disagreement concerning the applicable law, we think nothing would be gained by bench and bar by a detailed discussion of the testimony or the photographs and maps. We agree with the trial court that the greater weight of the evidence tends to support defendant's position, and that it fails to prove the allegations of plaintiff's petition. Only the plaintiff himself squarely fixed Weedy Lake as the low spot in this area on the defendant's tract. All others believed it to be near the railroad right of way.

II. Appellee does not take issue with appellant's first two propositions, nor do we. In them he states the Iowa rule that the owner of the upper or dominant estate has a legal and natural easement in the lower or servient estate for the drainage of surface waters, that the natural flow or passage of the waters cannot be interrupted or prevented by the servient owner to the detriment or injury of the estate of the dominant proprietor (Hume v. City of Des Moines, 146 Iowa 624, 125 N.W. 846, 29 L.R.A.,N.S., 126; Hunt v. Smith, 238 Iowa 543, 28 N.W.2d 213), and that the owner of the dominant estate may cast an additional quantity of surface water upon the servient estate; if in so doing, he does not thereby do substantial damage to the servient estate. Dodd v. Blezek, 245 Iowa 1112, 66 N.W.2d 104; Schmitt v. Kirkpatrick, 245 Iowa 971, 977, 63 N.W.2d 228; Woods v. Incorporated Town of State Centre, 249 Iowa 38, 85 N.W.2d 519.

In the case of Cundiff v. Kopseiker, 245 Iowa 179, 185, 61 N.W.2d 443, 446, where the controversy related to drainage of a 4.30 acre tract, we said: 'There is no definite evidence of the amount of additional water which flowed onto plaintiffs' land by reason of the claimed drainage of the small area heretofore mentioned. The burden of proof was on the plaintiffs to show the defendants caused an additional flow of water and the resulting damage.' Also see Board of Supervisors of Pottawattamie County v. Board of Supervisors of Harrison County, 214 Iowa 655, 672, 241 N.W. 14, 22.

Perhaps the controlling question is, which of these tracts, the plaintiff's or the defendant's, was and is the dominant estate and which the servient estate? In deciding this question the trial court said: '* * * prior to any change in the surface of the defendant's land, the surface of the plaintiff's Tract A, and the surface of the Borman land, surface waters flowing from the land of the defendant flowed, in the natural course of drainage, onto plaintiff's Tract A, and with respect to the flowage of surface waters from the land of the defendant, the said land of the defendant was the dominant estate and the land of the plaintiff was the servient estate.'

Appellant is unhappy with this conclusion, but from the testimony of many witnesses and from topographical contour maps, it would appear that Weedy Lake, or the lowest spot in the area, elevation 969.5 feet, was along the railroad both east and north of the defendant's landfill. See Exhibits 'Q', 1960, and 'DD', 1955....