132 Iowa 640 | Iowa | 1906
•The plaintiff’s farm, consisting" of thirty-six and one-half acres, lies along the southeast hank of the Shellroclc river. On the other side is a farm occupied by John Mulvey as tenant. The defendant’s lanJ joins that occupied by Mulvey on the west and north on the same side of the river, and is sixty to eighty rods from the premises of plaintiff. Goodsell owned a tract north of plaintiff’s farm and touched the defendant’s on the east. No line fence had been established between the plaintiff’s land and that occupied by Mulvey, nor was there any on the east side of the defendant’s land; nor was the construction of a fence on the line possible. The river, though fifteen or twenty rods wide, was nonnavigable, and under all the authorities the title of each riparian owner extended to the thread of the stream. Moffett v. Brewer, 1 G. Greene, 348; In re Valley, (D. C.) 116 Fed. 983; Norcross v. Griffiths, 65 Wis. 599 (27 N. W. 606, 56 Am. Rep. 642); 30 Am. & Eng. Ency. of Law (2d Ed.) 353, and cases collected. The water was shallow at some places, but at others deep, and often rose in a short time so that the maintenance of a fence therein or even across it was impossible. The statute concerning the construction of a partition fence hasmo relation to such a situation, unless the bottom of the stream is to be regarded as land from which no revenue or benefit is to be derived. Section 2355 of the Code provides that “ the respective owners of adjoining tracts of land, except timber land not used otherwise than for the timber thereon, from which each derives a revenue or benefit, shall be compelled to erect and maintain partition fences, or contribute thereto, and keep the same in good repair throughout the year, and if said fence be hedge, the owner thereof shall trim or cut it back
Upon the filing of a remittitur of all damages in excess of $1 within thirty days from the filing of this opinion, the judgment will stand as affirmed; otherwise reversed.