127 Iowa 175 | Iowa | 1905
Plaintiff owns the north half of the southeast quarter of section 22, and the defendant the south half of the same quarter section. Between the two tracts is a private right of way or lane leading to defendant’s house, and other improvements. To the east of both tracts, and abutting thereon, is a county highway running north and south; along the west side of which is a ditch which carries surface water southward into a creek or natural stream. Plaintiff claims that the natural flow of surface water was southward from her land onto that belonging to the defendant, and that defendant has constructed a dam or dyke on the north side of the private right of way in such a manner as to obstruct the flow of surface water across his land, and that at the westerly end of a ditch, constructed on the south
„ .2. Drainage: estoppel; evidence. In natural order we have to determine, first, whether or not defendant is unlawfully obstructing or accelerating the natural flow of surface water, and, second, whether or not’ plaintiff or her grantors have acquiesced therein † ° in such a manner as that defendant has acquired counter or adverse rights which should be protected. In such cases it is always difficult to ascertain the condition of the ground as nature left it, on account of the fading memory of witnesses, and the natural changes brought about through cultivation of the land. It appears from the testimony that originally there was a pond covering something like two acres of ground on the southeast quarter of section 22, four-fifths of which was on the land now owned by the plaintiff, and one-fifth, on the land of the defendant. Much of the water in this pond had no outlet, but before any improvements were made upon the land, when there was a heavy fall of water, some of it escaped from the pond by running over defendant’s land, both in a southeasterly and in a southwesterly direction; but at no time was the pond completely drained. Save for the overflow, the water escaped through evaporation. One Simpson, who sometime owned the entire quarter section, ran a fence so as to separate the tract into two eighty-acre pieces, but before building the fence, in order to raise it out of the water in the pond, he ran several furrows with a plow through the pond in such a manner as to raise the level of the ground along the line of the intended fence several inches above the natural level. Along this line he built his fence. Thereafter he sold the
II. As to the filling of the ditch and the cutting of
Tbe decree of tbe trial court seems to be correct, and it is affirmed,.