183 Iowa 385 | Iowa | 1918
The claim of the plaintiff is that this culvert is insufficient to carry the water that comes through her ditch to the grade, and the grade tends to cast it back upon plaintiff’s land, to her injury. She claims that this ditch has become a natural watercourse; that she has acquired the right to discharge, and the board lias no right to obstruct the flow of the water -in this natural watercourse to her prejudice.
This action was brought originally against the trustees and road supervisor of ICnos Township. Such proceedings were had thereafter that the board of supervisors of Pottawattamie County were made defendants, together with the original defendant.
The claim of the plaintiff in this suit is that she has acquired a right to discharge the surface water accumulating in the ditch upon the public highway at this point; that the ditch has become a natural watercourse; and that the board of supervisors has no right to obstruct the flow of water in this watercourse to her prejudice.
The allegation of her pleading is that this is a natural
The prayer of the petition is that, unless the grade of said highway be lowered sufficiently to allow the surface water flowing over said land to pass unobstructed over said highway, and unless the filling up of the watercourse, as above alleged, be removed from said stream of water at the point where it crosses the highway, or unless a sufficient number of bridges and culverts be placed in said highway to permit the surface waters and the water of said stream to pass over and across said highway, this plaintiff will suffer irreparable injury, as aforesaid. ■ Wherefore, she. prays that the defendants be required to lower the grade of the highway so as to permit such water to flow over and across the highway unobstructed, or that they be required to remove the obstruction placed in said stream where the same crosses the highway, so' as to permit the water to flow freely over the highway, or that it be required to place culverts in the highway in such a number and of sufficient size
On the hearing in the district court, a mandatory injunction was issued, requiring the board of supervisors to construct an opening in the highway at the point where the ditch comes from plaintiff’s land near the center of Section ,31, the opening to be not less than four feet in diameter. Denied all other relief. The defendant board of supervisors and intervenors appeal.
The history of this ditch along the west line of plaintiff’s east 80 in question seems to be about this: In the early days, there was a ditch coming from the north of plaintiff’s land running through the northeast corner of plaintiff’s quarter, continuing its course southeast until it struck the east line of the quarter. The owner of the northeast quárter threw up a dike across the swale at that point, driving in willows and throwing up dirt to make an embankment there, and dug another ditch from this original ditch or swale south to the northwest corner of plaintiff’s east 80,'and continued the ditch from that point due east along what is now the Christianson 80 and the plaintiff’s east 80 to the east road. This ditch was dug with a spade. This ditch was kept open for a number of years. During this time, there was no ditch such as is now in existence along the west line of plaintiff’s east 80. Between 1893 and 1895, this ditch was dug from the northwest corner of the plaintiff’s east 80 to the south line, or to a point at the center of Section 31 on the highway. This ditch was started by plowing and scraping. The work continued on it for three or four years. A dike along the east bank of the ditch was thrown up when the ditch was dug, and was piled higher as the years went on. By the action of the water, the ditch in question became deeper and wider, until a large ditch, carrying a considerable volume of water
We are not favored with any argument for the plaintiff in this case, and it is somewhat difficult to understand exactly the point upon which plaintiff relies to sustain the ac
It seems to be the claim of plaintiff that, having procured this ditch, in the manner hereinbefore indicated, along the west line of her east 80, she had become entitled to have the flow of the surface water that accumulated therein discharged without obstruction from her land over the highway and onto the land south. Swartfagger is one of the intervenors herein, and is resisting plaintiff’s claim. There was no showing in this record that this grade in the highway would interfere with the flow of the surface water from plaintiff’s land, if that surface water were permitted to gather and flow over the surface of the land in its natural channels. Plaintiff has, by means of this ditch, not only discharged the water from her lands at this point upon the public highway, but has collected the surface water from a large area both north and west of her land, and discharged it at this point in a different manner and in larger quantities than it could come in the'Course of nature. Her purpose .in this suit is to compel the county to care for the water so gathered by her and so discharged upon the pub-
Upon the fact issue, the equities are not with the plaintiff. Two propositions are involved in the determination of this suit:
2. Has the plaintiff, by long user and lapse of time acquired a right to discharge the water at this point, to the prejudice of the lower estates?
These two questions may be answered together. The servient estates below the highway, to the south of the highway, have, up to this point, without complaint, managed to divert the water from their lands by ditches running to the east to the Nishnabotna River. The board of supervisors, acting for the public, has endeavored to protect their property, the highway, by the same means. No complaint has been made by the servient estates up to the commencement of this trial. The efforts made to protect the servient estate against the surface waters gathered in this ditclr and discharged upon the lower lands, seem to have been fairly successful. No complaint was made until this trial was begun. The water through these ditches was carried along
We had occasion to review this question somewhat in Falcon v. Boyer, 157 Iowa 745, and from a review of the authorities, — many of which are cited in that case, — we have reached the conclusion that plaintiff has no rights here based upon the claim that this is a natural watercourse. The rule that an artificial ditch may, under some circumstances, become a natural watercourse by the lapse of time,' as between private individuals, does not apply when the rights of the public are involved; for neither the statute of limitations nor prescriptive right can be urged or claimed against the public.
“Though the authorities are in conflict on the question (to wit, the statute of limitations), this court is committed to the doctrine that, in establishing and maintaining a highway, a municipality exercises governmental functions, and for this reason the statute of limitations does not run against it with respect to encroachment therein.”
It follows that, if title to a highway cannot be acquired by adverse possession against the people, the right to destroy or interfere with the free use of the easement cannot be acquired by prescription. Manifestly, then, the plaintiff, by collecting the surface water on her land into a ditch, and discharging it at one point in a different manner and in greater volume upon the public highway than it would come in the course of nature, does not acquire such right by the lapse of time. The right of the plaintiff to insist that the board of supervisors take some action to protect her against the evil consequences that flow from her own act, must rest upon the thought that she has acquired a right to discharge the surface Avaters from her land in this way upon the public highway, against which the public has no right now to protect itself.
As we have said before, the statute of limitations does not run against the exercise of governmental powers. That the improving, draining, and grading of public highways constitute the exercise of that power, see Elliott on Roads and Streets (2d Ed.), Section 883, Avhere-it is said:
“The doctrine that higlrways cannot be lost by adverse possession is supported by other well-settled principles of the laAV. There can be no rightful permanent private possession of a. public street. ® It would be a grave reproach to the lavr to permit a wrongdoer * * * to take advantage of his own wrong and that of the municipality,*397 and by sucli indirect and wrongful means obtain a right to the street which the corporation is prohibited from directly granting or destroying. * * ‘Individuals may reasonably be held to a limited period to enforce their rights against adverse occupants, because they have interest sufficient to make them vigilant. But in public rights of property, each individual feels but a slight interest, and rather tolerates even a manifest encroachment than seeks a dispute to set it right.’ The rule best supported by reason and by the weight of authority is that the ‘common right of highway’ cannot be lost by the attempted adverse possess sion of a private individual.”
The evidence shows, without any serious conflict, that, in the early days, great volumes of water, covering a large territory northwest of plaintiff’s land, passed through a natural swale, and spread out over a large territory of land, and flowed to the east, finally finding its way to the river. To prevent this water from flowing in its natural course, this ditch was constructed, and it was brought to this point in the highway by artificial means; and it is this diverted water, accumulated at this point, that she now claims is flooded back by the defendants upon her land; and it is this water, so diverted by this artificial ditch, that the plaintiff now seeks to compel the highway officials to take care of and protect her against. This cannot be done.
Many questions are argued, involving motions and demurrers preliminary to the tendering of the final issue herein submitted, and error is predicated upon the action of the court in respect to these matters. We have preferred, however, to determine the controversy upon its merits, and do not, therefore, discuss or consider these preliminary matters, since we And the defendants entitled to have the case, reversed upon its merits.
Upon the whole record, we think the court erred in its conclusion; and the case is, therefore, reversed and re