186 Iowa 554 | Iowa | 1919
I. The lands of the parties adjoin. That of the plaintiff is lower than that of the defendant. At and near the line, the defendant has erected a dirt dam, or levee. ' Under certain conditions, the land of the plaintiff is overflowed, and the water flowing thereon reaches the place where said levee has been erected. Were there no levee at that point, this Avater would then flow over a depression on the land of the defendant, and into South Biver. It is conceded — at any rate, the testimony shows overwhelmingly — that the levee in question does not cause the overflow upon the land of plaintiff, and that his land is already completely under water before the water reaches
II. There is no dearth of testimony which deals in generalities, and which declares that, should there be a flood of sufficient gravity, water will, to some extent, recede more, slowly than it would if the levee wei*e not present, and that the area of the overflowed lands would, to some extent, be increased. But there it stops. The defendant testifies that the land of the plaintiff has been under water to the depth of four feet, before the alleged obstruction was placed, and that, if there is a crop, covering the land with that amount of water ruins the crop. Nowhere do we find an approach'in testimony as to how much the water in future floods would be deepened because of the erection of this obstruction, or that the water that would come upon plaintiff’s land without the aid of the levee would not ruin plaintiff’s crops. There is testimony tending to show that the increased slowness in recession and the possibilities of the enlargement of the overflowed area would cause plaintiff no damage. But we pass that, and recur to the inquiry whether the plaintiff has shown by a preponderance that he will suffer any definite or tangible injury through the act of the' defendant — whether we may find from the testimony that there will be future overflows which will damage the plaintiff because the levee holds water on his land for an in
“Where I am claiming thif*Samage, I didn’t get any corn. Q. I am asking you about the northwest corner. A. I think I claim damagés back in where we claim it raises higher back in there.”
The witness Brown did' not go beyond saying: “I would think it would raise the water on Mr. Escher’s land, and Black’s, too.” Other witnesses say that this levee would increase the amount of water held in case of overflow, and increase its depth and the length of time the water would remain on the land (Yan-Sandt). The witness Art says he thinks the effect was to back water onto Black’s land, and if the levee had not been there, “I think some of the-water would have taken a northeasterly course;” and if the water got to the top of that levee, “it would back up quite a ways on Black’s land;” and that, in the opinion of the witness, he would consider that would be a damage; that it would put the water back “on all of the forty next to Escher’s.” Mr. Black says that, when there was no levee, very little of his land would be overflowed, “when the water first began to overflow.” But he does not attempt to say how this has been changed by the erection of the levee, or how much more would now overflow, nor does he deny that all overflow would be complete before the water rose sufficiently to reach the point where this obstruction is. There is much more testimony to the general effect that, in the opinion of the witnesses, the water would pass off more rapidly if the levee were not there, and that, to some extent, not specified, the area of the overflowed lands belonging to Black would be increased. All attempts to make this definite failed. The witness Parsons, who had given some of these opinions, was asked, “Can you give any idea how many feet or inches the water would have to be
“Q. It would not make an hour’s difference? A. I don’t know anything about the time. I have no way of determining the difference in time in which the water would get off when the levee was there, and the time it would take to get off if the levee were not there.” He added “I have no way of estimating what, in acreage in gross, the amount there of Mr. Black’s land would be affected, but I know there is some.”
The witness Parsons was asked :
“Q. Before the water would get out when South River would raise and back up the branch, about how much of what is now Mr. Black’s land would be overflowed and under water? A. That is a pretty hard question to answer satisfactorily, but there wasn’t a very big proportion of it overflowed until the water began to go through this depression.”
One witness was asked to say whether he could give an idea about as to the number of acres that would be overflowed .“at that time,” and answered:
“Well, now, I never took the level, and I don’t know just how much, and no one can say; of course, there is lots more overflowed; it would be high there, and it would go over lots more, for it would be level — like ground.”
2-a
When it comes to establishing substantial injury because land which will overflow at all events, without an act of the defendant’s, will retain the overflow longer, and that such overflow will spread over more ground, there is inherent danger that the testimony will be vague and incon
“The probable damage, as estimated by appellant’s witnesses, is mere speculation, and not based upon any positive facts known to the witnesses as to justify their conclusion.”
That applies well, here. Enough has been said to show that it is problematic what damages, if any, the plaintiff will suffer in future. He is presumed to be solvent, and can respond in damages, should any be sustained. If this injunction stands, the defendant is sure to be deprived of the opportunity of producing crops which the levee saves. If the injunction stands, he may so be deprived, and the world with him, although the levee may never harm the plaintiff, and though, if it should, plaintiff can be made wfiole on the law side*
To warrant an injunction, there must be a substantial increase in the flow, — another way of saying that there must be substantial injury. See Schrope v. Trustees, 111 Iowa 113. In Way v. Roddy, (Tex.) 140 S. W. 1148, it is conceded that the owner of land situated near a stream cannot lawfully construct an embankment that turns the water of an overflow of such stream upon the land of another, if such turning injures that other. The controlling question was whether, under this rule, evidence that an embankment constructed by appellee shows such injury to appellant as authorizes the injunction sought. It is held that it did not justify it. One principal reason for so holding is thus stated:
“Appellant’s land is lower than appellee’s, and overflows before the water reaches appellee’s. On appellant’s 85-acre tract, beginning about 700 feet north of his south line, is a swale, or low depression, which extends north past the point at which the north line of the levee is in
The case of Crawford v. Rambo, 44 Ohio 279 (7 N. E. 429), gives some support to the Roddy case, and is, in some minor aspects at least, along the same lines; and in some aspects, the Roddy case is sustained by Wirds v. VierKandt, 131 Iowa 125, and Mattcson v. Tucker, 131 Iowa 511.
We find little applicability in Sheker v. Machovec, 139 Iowa 1,_ or in Keck v. Venghause, 127 Iowa 529.
We cannot agree that Troe v. Larson, 84 Iowa 649,-es-tablishes equity should take cognizance of the claim of this plaintiff. It is true we therein recognized that injunction will lie to prevent a multiplicity of suits; that, in granting the remedy, the court is not governed by questions of a pecuniary value, but will remedy and prevent an injury which it may be reasonably supposed would materially lessen the enjoyment of property by its owners; and that, where a mandatory injunction is granted to remove a dam erected across the outlet of a lake by an abutting proprietor, the effect of which is to raise the water of the lake above its natural level, and results in the continued overflow of the lands of the other abutting proprietors, injunction will lie because it cannot be told to what extent the injury will extend, how long the damage would be maintained, nor told when the rights of plaintiff can be determined by resort to an action at law, because all the matters are of so much uncertainty and of probable litigation that equity and justice demand a speedy and conclusive de
“That the dam raises the water in the lake above the natural height, or that to which parties have a legal right to maintain it, resulting .in a damage to the plaintiff by the overflow of his land, is not, to our minds, a doubtful question. * * * It is likely the effect of the dam is-to raise the water from 12 to 16 inches above what it would be if 'the bottom of the log was the height of the bed pf the channel. There is gome evidence tending to show that the ground where the ends of the log rest is higher than the ground between, and that water would, if not obstructed, run under the log. Considerable uncertainty attends the finding of such facts from the evidence; but our conclusion is, upon the record, that, if the channel of the outlet should be kept at the height of the bottom of the log, it would best- protect the rights of all parties.”
The Troe case is not an authority for appellee. It does not hold that the extraordinary remedy of injunction should be granted where it is uncertain that an obstruction can or will cause any substantial damage, but that it lies where it is uncertain whether there is an effective remedy at law for a damage which is certain, and where there will be occasion to apply to the law for redress many times to compensate for certain damage. That equity will act where it is uncertain that certain damage can be adequately redressed is quite different from allowing an injunction where it is uncertain there will be anything to redress.
And the Troe case sustains that no relief should go beyond what will save the complainant, without injury to the obstructor. It modifies the injunction. It holds that less than complete prohibition will suffice, because the de
“A proper order in this case would be to reverse, with direction to dismiss the petition, with leave to renew whenever defendant’s levee is causing the plaintiff actual damages.”
It is accordingly so ordered, and the cause remanded, with direction to dismiss the petition upon said terms. —Reversed and remanded.