131 Iowa 119 | Iowa | 1906
Plaintiff and defendants are owners of adjacent tracts of land; plaintiff obtaining her title through one Fisher, and defendants theirs from one Jeremiah Stover. Plaintiff claims that defendants gathered the water upon their premises and conveyed the <same through a tile ditch or drain away and out from its natural course and emptied it upon her land, causing her great damage. Defendants say that their grantors, by an agreement with Fisher, constructed the tile drain in question from the northeast to the southwest of their land, to a place where an open ditch on Fisher’s land began, upon Fisher’s promise that he would put
The evidence shows that the pond spoken of is in the southwest corner of defendants’ land, thirty rods from the south line and four or five from the west one. This pond covers three or four acres, and is two or three feet deep in the middle. About the year 1880 defendants’ grantor constructed a tile drain, which ran northerly from the pond for some distance, and then turned directly west toward the land now owned by plaintiff, terminating in a hole dug on defendants’ land some four feet east of the division line between the two tracts of land. Water from the pond was thus discharged into the hole, which, when the hole was filled, spread out over the land now owned by plaintiff to the westward, and found its way into a creek, still westward, which flowed through plaintiff’s land. Plaintiff’s land naturally slopes to the west, but there was no natural channel thereon draining the pond, save as the pond overflowed and spread its waters to the north and west. The tile at some places was two feet and more below the surface of the ground, and there is no claim that it follows a ditch, swale, or other natural depression of the ground. ,
2. license to revocation. The license given in this case, even if shown, was not upon a valuable consideration, and hence was revocable at the pleasure of the licensor. Cronkhite v. Cronkhite, 94
N. Y. 323; Clark v. Close, 43 Iowa, 92. The called license was in parol, and was not based upon any consideration passing to Fisher. The benefit was to plaintiff’s grantor, and not to Stover. Moreover, the license was a personal privilege to Stover, was not assignable, and did not pass with the land. Fischer v. Johnson, 106 Iowa, 181. The license in this case did not create an interest in land, and did not run with the land. Estes v. China, 56 Me. 407; Woodward v. Seely, 11 Ill. 157 (50 Am. Dec. 445); Buck v. Foster, 147 Ind. 530 (46 N. E. 920, 62 Am. St. Rep. 427); Foot v. Northampton Co., 23 Conn. 228; Taylor v. Gerrish, 59 N. H. 569; Pifer v. Brown, 43 W. Va. 412 (27 S. E. 399, 49 L. R. A. 497).