105 Iowa 225 | Iowa | 1898
— The plaintiff is a city of the second class, organized and existing under the laws of this state. It includes territory on both sides of Cedar river, and is intersected from east to west by an important street, known as “Bremer Avenue.” Through the central portion of that part of the territory west of the river extends a water course known as “Dry Bun.” It crosses Bremer avenue near, and east of, Aspen street, which extends from north to south, intersecting the avenue. The run has two branches, which drain about one thousand five hundred acres of land, and unite within the city limits at a considerable distance northwest of the crossing at the avenue. - Penn street is parallel to, and about one hundred and forty rods north of it; and between the two, extending from east to west, are five other streets. The run crosses Penn street, and the distance from that crossing along’ the run, to the river into which it empties is three hundred and sixty-six rods, and the fall is about twenty-four
The plaintiff contends that Dry run is a water course, of which it has control, and which it has controlled for many years; that the water course should-have been kept open, for the purpose of draining the territory through which it extends; -and that., should it be obstructed permanently, great and irreparable injury would result to- the city, a® well as to its inhabitants-. The defendants -admit that-there is a slight depression in that part o-f the city designated as “Dry Run,” but deny that it -ever had any defined channel or 'banks as -a water course, or that any water ever flows through it, excepting the surface water from unusual rainfalls, or -other extraordinary cause®, and that in -such cases- the flow i-s for but a few hours at a time; and they ins-i-st that they have a right to- fill the depression in- their lots in. the manner -described. They contend that the water which would flow north of the avenu-e could readily be turned along the streets and alley® -eastward into- the river, and that it is the right and the duty o-f the plaintiff to make provision- for disposing of water from the territory specified, in that manner. There is no-t a -constant flow of water through the water course in question. On the contrary, it is dry, -excepting in case of melting snow or -of unusually heavy rainfall; and on such occasions water flow® into it but a few -days at a time-. It sometimes happens- that when an exceptionally large quantity of water lias fallen tire water course is not sufficiently large to carry off to the river the water 'as fast as it accumulates, and t.h,at lot® and -streets in its vicinity are overflowed. The plaintiff has for many years assumed control of the run. It ha® provided artificial channels at some places, and ha® -erected numerous- bridge® over it, at a great
There are authorities which hold that depressions in the surface of the earth, through which water flows only in times of high water, are not water courses, ivithin the meaning of the law which forbids the obstruction of Avaiter courses; and, within the rule of ,sucli authorities, Dry run, north of Bremer aiunue, is not a Avater course, and any proprietor might laAvfnlly obstruct the flow of water therein over his- premises. See Hoyt v. City of Hudson, 27 Wis. 656; Gibbs v. Williams, 25 Kan. 214. The appellant also cites the cases of City of Cedar Falls v. Hansen, 104 Iowa, 189, and Knostman & P. F. Co. v. City of Davenport, 99 Iowa, 589, in support of the same doctrine. In the former of these two eases it appeared that the defendant owned three lots, in Avhich there was a depression which furnished an outlet for surface Avater from a pond. The pond was filled, but surface water at times flowed from the same territory through the depression. The city improved the street near the lots, and in so doing made a ditch along one side of two of the lots, and turned it onto the third lot, SO' that water from the ditch passed into the depression on that lot. The defendant had placed a house over the depression, and was about to fill the lot 10’ the level of the street, and 'thus make a permanent obstacle to the flow of water in. the depression; and AA’e held that he had the right to do so-. That conclusion was based upon the rule that a city may bring its streets to. grade; that by doing so, it may turn surface water from its natural course, and owners of lots below