181 Iowa 14 | Iowa | 1917
The plaintiff’s and the defendant’s land joins. Plaintiff’s land is on the west. They are divided by a fence running north and south, about one-half mile in length. The plaintiff’s land is in Section 18 and in the west half of Section 17. The dividing fence runs through the center of 17.
The plaintiff claims that the appellant obstructed the flow of the water through this creek at the division line, by placing rocks in the bottom of the creek at that point, the effect of which, plaintiff says, is to obstruct the free flow of the water and cause it to spread out and over plaintiff’s land to his damage. The defendant claims, however, that he has not obstructed the natural flow of the water in this creek, and says that whatever damage the plaintiff has sustained has been caused by the natural overflow of water from streams and other causes.
This is practically a fact case. Much learning has been-expended in effort to make it appear that, under the law of this state, if surface water from the dominant estate uniformly and habitually flows over a given course, having-reasonable limits in width, onto the servient estate, the owner of the dominant estate has no right to cause this surface water to be discharged upon the servient estate in any other way, or in greater quantities, than it would so flow in the course of nature. Further, that a natural watercourse is not necessarily a channel with banks, but it may be such in contemplation of laAv, even though there are no banks, if the water uniformly flows in a certain line within reasonable limits; that a watercourse is the natural line of flowage. We are further told that it is not necessary that this watercourse be the result of natural causes; that it
These contentions haA^e their support in Pascal v. Donahue, 170 Iowa 315; Jontz v. Northup, 157 Iowa 6; Bramley v. Jordan, 153 Iowa 295; and Falcon v. Boyer, 157 Iowa 745. So Ave have abundant authority for saying that the stream or creek or watercourse in controversy is a Avatercourse, and AA7e Avill so treat it in the discussion of this case.
We have authority for further saying, on the assumption that this is a natural Avatercourse, that equity Avill enjoin the continued diversion of the Avaters from this creek from its natural course on plaintiff’s land.
This brings us to a consideration of the facts as disclosed in this record. While the record discloses that plaintiff oavjis about 520 acres of land in Sections 17 and 18, Avest of the line running north and south through the center of Section 17, and defendant’s land is all east of this line in 17, we have only to deal Avith so much of the land of either of these parties as lies in Section 17.
The plaintiff oaviis the east half of the northwest quarter, and the southwest quarter of the northwest quarter, and the nortlnvest quarter of the soutlrwest quarter, of Section 17. The defendant owns all of the northeast quarter of 17. The obstruction complained of is where the creek crosses the fence line betAveen the land of the plaintiff and the land of the defendant, just north of the center of Section 17. There is a road running in a northeasterly andsoutliAvesterly direction across the southeast quarter of the northwest quarter of 17, cutting off about 2 acres in the southeast corner of this 40. The general character of the land that lies to the east and south of this highway is partly farm land, but mostly pasture. The southeast quarter
At the point where the creek enters the Durst land, it is about 10 feet deep. Going eastward along this creek from the fence line that divides the land, the ditch has high banks, perhaj)s 4 or 5 feet. As this creek approaches the place where it is claimed this dam is constructed, it becomes shallow. At this point, defendant was accustomed to cross the creek, having land on both sides of the creek, and, as the bottom of the creek was soft, rendering it difficult to pass through with a team, he placed rocks on the bottom to make a solid base on which to cross from one side of the creek to the other. This is what the plaintiff denominates a dam, which, he claims, obstructs the flow of the water. The banks at this point seem to have been lower than at any other point on the creek line, and for this reason it was selected by the defendant as a place to cross from one side of tire creek to the other to cultivate his land. The creek just west of the fence on plaintiff’s land, west of where it is claimed this obstruction is, has well-defined banks, and receives a large amount of water from the hills.
The filling in the creek that causes overflows on plaintiff’s land, so far as we can gather from this record, which
The whole controversy on plaintiff’s part seems to rest on the assumption that this stone crossing is the cause of xvhat appears to us to be due to conditions existing on his oxvn land, to xvhich it is not shown that the stone crossing has contributed in the least. There is no evidence that this stone crossing has diverted any xAUiter' from the natural channel, or that any of the conditions found west of the
We find no substantial basis in the record for the granting of the writ in this case, and the case is therefore —Reversed.