152 Iowa 485 | Iowa | 1911
Plaintiffs Hatton own the N. y2 of the S. W. % °f section 5, and plaintiff Finnerty the S. y2 of the N. W. y± of the same section. Defendant owns the S. y2 of the N. E. % of section 5, all in the same township and range. It thus appears that plaintiffs own one hundred and sixty acres of land and defendant eighty acres immediately to the east of and adjoining the eighty acres owned by plaintiff Finnerty.' What is known as Tack creek runs in a southeasterly direction through the west forty acres of defendant’s land. Practically all of the entire two hundred and forty acres is in what is called “Second bottom,” adj acent to the Mississippi river,' and the entire land of which this two hundred and forty acres is a part is called the “Montrose bottoms.” Immediately to the west of plaintiffs’ land is a row of hills running in a northeasterly direction from the Mississippi river to some distance north of the land in controversy. These hills begin to rise from the extreme western part of the lands owned by plaintiffs. These hills are broken by hollows, gorges, and ravines which carry surface water out onto and upon the bottoms. The dwelling houses of the plaintiffs are near to these hills and not far from gorges
Years ago plaintiffs’ and defendant’s grantors opened up a ditch on the Finnerty land just north of the line between his land and that owned by Hatton for the purpose of carrying the water which came out of the hills almost directly eastward through the ridge heretofore referred to and upon the land now owned by defendant, and from tho mouth of this ditch the water passed over defendant’s land, into Jack creek. Other -ditches were built near the foot of the hills where the ravines came down near the dwelling houses owned by plaintiffs so as to carry all the water coming out of these ravines into the ditch on the. Finnerty land, and onto the land now owned by the defendant. There is a dispute in the'testimony as to just when this work was done, and we shall have more to say about this matter presently. This ditch across the Finnerty land through the ridge hitherto described frequently became clogged, and for a time was cleaned out by the plaintiffs. Defendant purchased his land in the
Although plaintiffs claim that defendant owns the servient estate, they frankly admit that the ditch in question does not follow the natural course of drainage, and that they are not entitled to have it maintained except upon the theory that the ditch was constructed pursuant to a license or grant from the owner of the servient estate, or by reason of the use and maintenance thereof with the knowledge, consent, and approval or acquiescence of the owner of the servient estate for more than ten--years. They
That twenty years or more ago, by agreement of parties in interest, and by the owners of the respective parcels of land hereinafter mentioned, a certain ditch was dug for the purpose of carrying off water that flowed from the hillsides west and northwest of the property owned by plaintiffs, over plaintiffs’ land, and ' onto the land lying east of them into a creek known as Jack creek that empties into the Mississippi river at or near the town of Montrose, in Lee county, Iowa. . . . That for the past twenty years the water accumulating on the land west and north of plaintiffs’ land, and flowing east, as heretofore mentioned, collected in said ditch and flowed easterly through same between the land owned by plaintiffs Hatton and plaintiff Einnerty, and between the land owned at one time by - Campbell and Martha A. Kennedy; that the parties who owned the land in the southwest part of .the N. E. % of section 5, and in the. northwest part of
In an amendment to their petition they alleged:
That the party who owned the land now owned by plaintiff Peter Pinnerty, at the time of the making of the contract or agreement, referred to in said paragraph 4 and paragraph 8, is dead, and the party who at the time of making this said contract or agreement, referred to in said paragraphs, owned the land now owned by plaintiffs W. B. Hatton and Mary Hatton, and described in the first paragraph of their petition, is a nonresident of the state of Iowa; that the said contract in reference to digging the ditch was made between the parties heretofore referred to, so far as the digging of the ditch is concerned, between ,the N. % of the S. W. % of section 5 and the S. % °f the N. W. 14 of section 5; that prior to the time of the digging of the ditch referred to in the said original petition the water was accustomed to flow off of the ground and hill west of the said two pieces of land and onto the said two tracts of land and into a certain ditch and carried it onto the land in the N. E. of section 5,. township 66, range 5-W, and then into Jack creek; that, with the consent of the party who then owned the N. E. % of said section 5, township and range aforesaid, the ditch was made as now constructed and as set out in the
Such is the case made for plaintiffs in the pleadings. The trial court after hearing the testimony, made the following finding:
The court finds that more than ten years prior to the commencement of this suit a certain ditch had existed and was constructed near the half section line between the N. W. % and the S. W. % of section 5, township 66 N., range 5-W., in Lee county, Iowa, running through the greater portion of the land owned by the defendant in the same section, township, range, and state; that the said ditch was dug for the purpose of carrying the water off of plaintiffs’ land and the surrounding lands and into Jack creek, passing over the land of defendant in manner and form as described in plaintiffs’ petition; that the said ditch had been dug by consent of parties in interest, and that water had flowed through the same continuously and over defendant’s land for more than ten years prior to the commencement of the suit, and by reason thereof an easement had been established in favor of plaintiffs for the flow of the said water through the said ditch, over the land of defendant into Jack creek, and the statute of limitations had run in favor of plaintiffs and against the defendant.
Under this state of facts, the law as announced in Vannest v. Fleming, 79 Iowa, 638, is. quite applicable. It is there said: “It is shown by the evidence, indeed, the defendant so testified that the ditch referred to in the first part was made upon defendant’s land before he owned
The mere fact that Campbell did not have the record title to the land when the agreement was made is not controlling, for, after obtaining title, he knew of the claims of plaintiffs’ grantors and acquiesced therein. Defendant concedes that for a time at least plaintiffs or their grantors kept the ditch cleaned out, and that water flowed through the same as originally contemplated.
Going to the record, it is clear to our minds that neither plaintiffs nor their grantors ever intended to aban
“In some cases an abandonment of an easement is inferred from a nonuser of the right. But though this is true, under certain circumstances, it is believed never to apply .unless the nonuser shall have been of as long dura
Again, at pages 673 and 674-, the same author says: “In respect to the effect to be given to a mere nonuser of an easement which has been acquired by adverse user or prescription, although the language of some of the cases would imply that, if continued for twenty years, it would be of itself an abandonment, it is believed that such nonuser is in no case anything more than evidence of an intent to abandon the right; .that it never applies when the period of such nonuser is less than the period of limitation, and is open to explanation and to be controlled by evidence that the owner of the easement, did not intend to abandon it while omitting to use it.” This further quotation is made from the same author because of its relevancy to the proposition now being discussed: “The owner of an easement may destroy his right to the same by actually abandoning the right as well as the enjoyment, especially if a third party become, interested in the servient estate after such act of abandonment; and it would operate unjustly upon him if the exercise of the easement were resumed in favor- of the dominant estate. It is not easy to define in all cases what would be such act of abandonment as would destroy a right of easement, and each case seems
Again, in Gould on Waters, it is said: “After the acquisition of an easement by prescription is complete, it may be lost by abandonment, when the facts, or circumstances clearly indicate such an intention. Nonuser is one element in determining such intention, and, if long continued, is presumptive evidence that the right is lost. But a jury is not bound to infer an abandonment from nonuser alone, though continued for more than twenty years. If the nonuser was merely for the convenience of the owner of the dominant tenement and -those under whom he claims, and without .any intention to abandon the right, such right still continues; and, if the nonuser is not accompanied by acts showing an intention to abandon, evidence of adverse possession, as well as nonuser, is necessary to effect the extinguishment, although no declaration of abandonment is made.” Gould on Waters, section 348.
The testimony shows that plaintiffs and their grantors frequently cleaned -out the ditch, and that plaintiff Hat-ton, who leased his land to a nephew of the defendant for the years 1896 and 1897, had a provision in the lease whereby the lessee agreed to keep the ditch cleaned out. The trial court did not err in finding- there was no abandonment. But defendant contends that there is no testimony aside from mere user to establish the claim of prescription -or adverse possession. This contention is without merit. The plaintiffs introduced ample testimony tending to show a claim of right to the ditch pursuant to an agreement with Campbell. This being true, the case falls within a long line of our previous cases of which Schofield
cases. The difficulty with- this proposition is that plaintiffs’ grantors secured something more than a parol license. Under the facts disclosed, they not only acquired an easement, but went upon the land now owned by defendant, and there dug a ditch which was to take care of the water on that land as well as that coming across their own. The case is not within the statute of frauds for the reason that the agreement was fully executed and plaintiffs and their grantors immediately began to make use of the easement. The case in this respect is ruled by Vannest v. Fleming, supra; Cook v. Chicago, B. & Q. R. R., 40 Iowa, 451; Decorah Co. v. Greer, 49 Iowa, 490; Ruthven v. Farmers Co., 140 Iowa, 570, which clearly points out the distinction between this case and Jones v. Stover, supra; Wickersham v. Orr, 9 Iowa, 259, and other like cases.
Assuming that the burden was upon plaintiff of showing notice to the defendant, they have clearly met this burden by showing possession. Defendant’s claim that plaintiffs asked his permission to open the ditch before proceeding to clean it out just before he (defendant) built the dam, and that this request was framed in such a way as -to indicate they were then making no claim of right in the ditch, is not sustained by the record. The defendant’s own testimony is such as to sustain the claim, but this was denied by the other parties present, and there is no reason to believe that this so-called request was other than a neighborly statement or warning as to what they intended to do. The close question in the case is upon the issue of abandonment. The testimony with reference thereto is very conflicting and difficult of explanation. Doubtless this was one of the reasons why the court went with counsel and viewed the premises. What the trial judge saw on this trip can only be known as it is reflected by the decree. A view of the premises may have had a most important bearing in settling the dispute between the witnesses as to this matter of abandonment. This being true, we are not justified in saying that the trial court Avas in error in its finding of facts on this issue. None of the eases cited and relied upon by appellant' run counter to the views hitherto expressed. We shall not review them all, as it would unduly extend an opinion already too long. We haA^e already noticed the Jones-Stover case and need only say of Preston v. Hull, 77 Iowa, 309, that it is not in point, for the reason that, nothing but user was shown in that case. The same observation is applicable to McBride v. Bair, 134 Iowa, 661, and other like cases. Plaintiffs had fully acquired their prescriptive rights before defendant purchased his land and the use made of the
The decree seems to be right, and it is affirmed.