Woods v. Incorporated Town of State Centre

• Citation: 249 Iowa 38,85 N.W.2d 519
• Decision Date: 15 October 1957
• Docket Number: No. 49221,49221
• Parties: Dan WOODS, Appellee, v. INCORPORATED TOWN OF STATE CENTRE, Iowa, Appellant, Carl L. Liston, Intervenor-Appellee.
• Court: Iowa Supreme Court

Page 519

85 N.W.2d 519

249 Iowa 38

Dan WOODS, Appellee, v. INCORPORATED TOWN OF STATE CENTRE, Iowa, Appellant, Carl L. Liston, Intervenor-Appellee.

No. 49221.

Supreme Court of Iowa.

Oct. 15, 1957.

Adams, Adams & Adams, Marshalltown, and Cornelius Van De Steeg, Orange City, for appellant.

Haupert & Robertson, Marshalltown, for appellee.

LARSON, Justice.

We are convinced, as was the trial court, that the equities are with the plaintiff and intervenor, hereinafter referred to as plaintiffs, and with certain modifications we affirm the judgment of the lower court.

It is true there seems to be hopeless conflict in the authorities throughout the country as to the law relating to the handling of surface waters, and even in our jurisdiction some of the cases seem to be irreconcilable. Each case appears to largely depend upon the circumstances, and when carefully considered in that view the conflict is not so apparent. The issues raised herein relate to original drainage or natural waterways, artificial watercourses easements relating thereto, and to municipal and lot owners' rights to establish and meet grade lines which affect surface water drainage.

The facts are relatively simple and are not greatly in dispute. There is substantial evidence in the record to justify the court's findings of fact, and we agree with them. Plaintiff Dan Woods acquired Lots 3, 4, 5, and 6, in Block 15, Babcock and Thompson's Addition to the Town of State Centre, Iowa, in 1949, and sold Lots 3 and 4 to Intervenor Carl L. Liston in 1954. Liston promptly built a house and garage on his property and filled a part of Lot 4 to the level of the street as a driveway to his property. The home of Woods, over thirty years old, is located on Lot 6. Lot 5 is vacant, but there have been negotiations to sell it to a party interested in building a home. The residence of one of the witnesses is located on Lots 1 and 2. All of these lots are on the south side of Fourth Street between Oneida Street on the east and Carpenter Street on the west which runs north and south. Third Street is the next east and west street north of Fourth. On the land located at the northeast corner of the intersection of Oneida and Third Streets is located a grade and high school.

In 1930 or 1931 the State Highway Commission, with the approval of the town council, graded and paved Fourth Street and established thereon U. S. Highway Route 30. In doing so, they replaced a 12 inch diagonal pipe about halfway in this block with an 18 inch culvert emptying some three or four feet below the grade, 10 feet north and 18 feet east of the northwest corner of Lot 4. They also removed a 12 inch culvert at the east side of the Fourth Street intersection, and placed one under the north side of Oneida extending westward. Ditches were established from that point to the north entrance of the 18 inch diagonal culvert. Surface water from the north was no longer permitted to go south by the Fourth Street intersection, but was sent westward on Fourth. No ditches were established westward beyond this culvert on either side of the street, and the water which came out the south end of the culvert flowed over Lots 4, 5 and 6, upon which there was a marked depression, to the alley behind them, thence westerly. The lots were each 58 or 59 feet wide and 120 feet deep, so that there was only some 135 feet between the south outlet of the culvert and the southwest corner of the Carpenter and Fourth Street intersection. In view of a slight fall westward to Carpenter Street, some discussion was had as to the feasibility of a ditch or pipe placed in the street covering that distance, from whence the water could be sent south some 120 feet to reach the same point it did by traversing plaintiff's Lots 5 and 6. We cannot understand why that was not done at the time of the improvement in 1931, but apparently the owners of Lots 5 and 6 believed there was nothing they could do but protest, which they did to no avail. Action was not taken, which gives rise to the principal contention now made by defendant that there is a town right established by prescription or easement which may not be disturbed.

In 1950 or 1951 further improvements by the town were made which increased the volume and flow of water to this culvert and thence to plaintiff's lots. Oneida Street was graded up, with most of the water carrying ditch on the east side, and was blacktopped. The school grounds were blacktopped, as was Third Street to the south. This street had been a flat muddy street, but after the improvement, new culvert guides directed the west half of the block drainage to the east ditch on Oneida Street, thence south to Fourth Street, and then westward to the culvert emptying some 10 feet from complainant's properties. This, plaintiffs contend, further increased both the flow and the volume of water to their properties, in addition to debris of every nature, and caused much damage to them. The trial court believed it was a substantial increase due to the fact that little or none of this surface water could soak into the ground over that area. Of course it is not contended sufficient time elapsed from 1950 to May, 1955, when this suit was commenced, to establish an easement, but it is defendant's contention that the easement established from 1931 to 1950 of a watercourse across Lots 4, 5 and 6, would not be affected by the increased flow or volume as long as it did not drain additional territory. Plaintiff Woods admits that prior to 1930 the lots involved were burdened by about half the area of Block 13 just north of his lots, but offered evidence such volume was slight and beneficial. He contends until he desired to fill in his lot, he was deprived of no right upon which prescription rights would run; that this volume at one time was carried by an 8 inch tile, and that such drainage did not make his property a watercourse under the law. As to the 1950 increase plaintiff said, 'Ever since 1950 * * * in every rain there was a regular river through there. Twice as much water, anyway, I would say.'

After intervenor Liston had filled his lot to make a driveway, plaintiff advised the town council he wished to fill his lot some 3 or 4 feet to meet the street grade, and asked the council to otherwise dispose of the water emptying from the culvert. He was asked to replace the covered sidewalk, and agreed. He was then told he could fill his lot to grade if he would put in a drain tile under the fill to carry away the water from the present culvert. This he refused to do, and continued to fill his lot to grade back for some 75 feet, which included fill on the street beyond his lot line. The involved culvert was stopped by concrete. The town removed the concrete, and from the hole at the end of this culvert poured water which washed away parts of the new fill. Thereafter when the council refused to consider extending a ditch westward on the south side of Fourth Street, this action was commenced. The town countered asking that the obstructions be removed and the defendant be restrained from obstructing the flow of said water over his property.

Other facts were related, but these are the ones we deem material to this decision.

I. The rights and obligations of municipalities and of individual property owners in connection with the control and distribution of surface waters, have been the subject of numerous decisions of this court. We cannot list all of them in this opinion, but will refer to some of the leading cases for pronouncements of interest herein. One of the first general reviews summarizing the law up to that time was Hume v. City of Des Moines, 146 Iowa 624, 125 N.W. 846, 29 L.R.A., N.S., 126, written by Judge Deemer. It was held therein that in exercising the power and duty of a city to grade its streets, reasonable care and prudence must be taken, and if it unnecessarily or negligently cast surface water upon adjacent lots without giving the owner a change to bring his lot to grade, there would be liability due to negligence in the performance of a ministerial act. It is obvious that when the city acts negligently and damage results, the owner's rights may be and perhaps must be maintained to avoid a loss of the right.

II. It is generally true that one, including municipalities, cannot collect unreasonable amounts of surface water into an artificial channel, or in substantially greater volume than usual, and pour it upon the land of another to his injury. Hume v. City of Des Moines, supra; Trumbo v. Pratt, 148 Iowa 195, 126 N.W. 1122.

III. 'Surface waters' have been described, as the term indicates, as water on the surface of the ground of a casual or vagrant character following no definite course, of a more or less temporary existence, which spread at random over the ground and are lost by percolation into the soil and by evaporation. They are to be distinguished from the water of creeks, streams, rivers, ponds, and lakes, having a substantial existence and a substantially definite location. Hunt v. Smith, 238 Iowa 543, 555, 28 N.W.2d 213, 218, 219; 41 Iowa L.Review 231, 232. Surface water is sometimes referred to as a 'common enemy'. See 25 Am.Jur., Highways, sec. 87, pages 391-393; 56 Am.Jur., Waters, sec. 78, page 565. In McQuillin, Municipal Corporations, 3rd Ed., Vol. 13, sec. 37.254, page 673, we find:

'The municipality may protect its streets from water that accumulates thereon, and to that end may construct drains, gutters, culverts, and conduits, and may discharge the water into natural drains, but it has no right to discharge the water thus accumulated in a body upon adjacent lands. That is, where surface water is collected by the municipality from the highway and discharged upon private property in substantially larger quantities and in a substantially different manner than it would flow naturally, the owner of such land is entitled to damages therefor' (emphasis supplied), citing Cech v. City of...