157 Iowa 745 | Iowa | 1913
— The defendant, Boyer, is the owner of the S. E. ^4 of section 27. The plaintiff, Falcon, is the owner of the S. W. % of 26 and the N. E. % of section 34, and each was the owner of said land at the time of the happening of the matters complained of. That what is called by the plaintiff a branch of Indian creek, runs’ across plaintiff’s land in section 26 and crosses the line between 26 and 27 about 27 rods north of the southeast corner of 27, passes through 27 in a southwesterly direc
It appears that in November, 1905, the defendant built a dam across this branch of Indian creek just west of the line fence between sections 26 and 27, then dug a ditch upon his own land from that point south along the fence to the southeast corner of section 27; that, after building this dam and excavating the ditch, the waters of this stream were then forced to flow down the ditch so dug and, upon reaching the corner common to 26, 27, 34, and 35, were turned westward along the line between 34 and 27, and thence on until they emptied into the main Indian creek, at a point about 27 rods west of the corner common to the four sections aforesaid.
This action was brought in equity to restrain the defendant from so diverting the waters of said stream by means of said ditch and casting the same upon plaintiff’s land in section 34, and for a mandatory order compelling the defendant to remove the dam from said stream so that the waters might flow in their natural channel, and to require the defendant to construct a dam in said ditch to prevent the waters from flowing therein, and to recover damages of ¡the defendant on account of the matters complained of.
The defendant claims that by building the dam aforesaid, obstructing the flow of water in its natural channel in this branch of Indian creek, and by the digging of the ditch aforesaid, the defendant caused the waters to be diverted from their natural course and cast upon plaintiff’s land in section 34, to his damage.
The court, at the conclusion of all the testimony, found the issues for the plaintiff and entered a decree that the plaintiff had sustained and was entitled to damages against the defendant. The court further found that in diverting 'the water course and gathering together the waters from a large area of land, to wit, about twelve hundred acres, and conducting them in the artificial ditch cut by defendant, the defendant has destroyed, in part, the boundary line and the plaintiff’s fences thereon between said sections 26 and 27, cut a large, deep, and irregular ditch on the plaintiff’s land twenty or more feet in width at the east end, and from ten to fifteen feet in width at the west end, on the north line of 34, and to a depth of four feet or more, and has washed away the plaintiff’s east and west fence from the southeast corner of section 27 westward and cut and washed his division line between sections 34 and 27, and washed away his land; but the court expressly finds that the said sum of $600 does not include any damages claimed, if any are claimed, by the plaintiff for the destruction of lateral support to his lands, and the plaintiff stated in open court that he makes no claim for damages on account of the destruction of the lateral support to his lands and waives all such claim. The court expressly finds and limits all damages awarded the plaintiff, to wit, in the 'sum of $600, to the damages caused by and on account of the unlawful diversion of the water course by the defendant, and to the washing of the plaintiff’s lands by reason thereof, and the destruction of'
From the judgment so entered the defendant appealed and complained: First, That the court erred in finding that the stream or channel across which the dam was built was a natural water course.
. There is no controversy here as to tire facts touching this ditch, its construction and character. Therefore the question as to whether or not it is a water course is a question of law.
A water course is defined as a natural stream of water usually flowing in a definite channel, having a bed and sides, or banks, and discharging itself into some other stream or body of water. It is not necessary that its origin be exclusively the work of nature. It may be aided by the hand of man; but if thereafter it, becomes a living flowing stream of water, with all the essential elements of a water course, and has remained in such condition for the prescriptive period, then, as to parties through whose lands it runs, and as to their rights, it becomes a water course, and their right to divert it or control it, tp the prejudice of riparian owners, becomes fixed and settled.
It seems in this case a great many years ago the water that flowed in this stream subsequently followed this natural course; - that the grantors of the plaintiff and defendant made some slight excavation in the ground tending to facilitate the flow of the water over their lands in this natural course. By the action of nature and the laws of gravitation, this water gradually cut a deep and wide channel through the ground, through which the waters had flowed for a great many years, discharging itself into what is known as Indian creek. The original source of the water is not shown in this record; but that they coursed through this channel for more than twenty years prior to
The next question involves the right of the defendant to divert it from its course and to discharge it upon the lands of the plaintiff.
Where a stream of water, such as this, is diverted from its natural channel and from the line which it pursued in the course of nature and is thrown upon the land of another, the party on whose land it is thus thrown may not only maintain an action for damages but may restrain the party from thus diverting the water to his prejudice. This has been so frequently held and is now so well established that it needs no argument. In support, however, of this proposition, see 30 Am. & Eng. Law (2d Ed.) 362, 363; Albright v. Railway Co., 133 Iowa,
It is next contended that the damage in this case, as disclosed by the pleading and the evidence, was original damage, and not continuing, and therefore that an injunction would not lie; that the plaintiff had a plain, speedy, and adequate remedy for all the damages which he sustained ; that they had all accrued at the time of the commencement of this action and were capable of definite ascertaining.
It is next claimed that the evidence does not disclose any injury to the land in section 26, except such as might arise from the destruction of the lateral support of plaintiff’s land along the line of the ditch; that any claim for damage on this ground wgs waived by the plaintiff; that the damage, if any, of which plaintiff complained can be found1 only in the injury done to his land in section- 34, and this damage exists only in the trespass of the defendant in appropriating plaintiff’s land along the north line of section 34 as a passageway to conduct the water from his ditch to the main channel of the Indian creek.
Modified and Affirmed.