175 Iowa 202 | Iowa | 1916
This action was begun in June, 1909, but was not brought to trial and judgment for nearly five years. That counsel were not idle during all these years is demonstrated by the fact that the conflicting claims and demands of the parties have grown and expanded through petition; answer; cross-petition; amendment to petition; amended and substituted cross-petition; amendment to amendment to petition; amendment to answer to amended and substituted cross-petition; amendment to amended and substituted cross-petition; amended and substituted and supplemental answer and cross-petition ; and an answer to thé amended substituted and supplemental cross-petition.' There was more or less fencing with injunctions and . counter-injunctions, interlocutory motions and orders, with the result that, if the court has not been “lost in an impenetrable forest,” it is at least compelled to break
The ownership of the lands, their location and natural slopes, will be better comprehended by reference to the following cut.
The plaintiff is the owner of the lands marked on the plat with the names of his grantors, L. C. Goodrich and B. Nightingale, and defendant is the owner of the smaller tract marked “Not in the deal,” west of the Goodrich tract. Most of the water which is the cause of the trouble comes out of the higher lands or hills on the north, through a channel which crosses the highway immediately west of the northeast corner of defendant’s lands, continuing south a little west of his east line for a short distance, where it reaches a low and comparatively flat area, and where, if left without interference with natural conditions, it ceases to run in a single defined channel, but scatters and spreads southeast over plaintiff’s land in the direction of the Boyer River. In the year 1884, Shaw, Nightingale and Goodrich, then owning the three tracts marked with their names, united in constructing a ditch, which is designated by the witnesses as the “Shaw Ditch,” or “Shaw-Nightingale Ditch,” beginning at “B” on the north, thence south to “C,” and thence east to the river. The northern terminus was on the Goodrich’ land, just south of the south line of the land now owned by defendant, and the ditch continued south and east, as above mentioned, the entire distance on the Nightingale land, but close to the boundary line. At some time after the
As we read the record, there is an entire failure of evidence to sustain the allegation that the ditch was originally constructed under or pursuant to any express agreement between the grantors of the plaintiff and the grantors of the defendant. Of defendant’s grantors, only Johnson and Cook appear as witnesses; and, though called by plaintiff and testifying in his behalf, neither of them say that they ever had any agreement with plaintiff granting him the right to construct or maintain the ditch. Each swears that, when he bought the land, he found the ditch there, and the showing of his acquiescence therein is confined to the fact that he allowed plaintiff to clean out the ditch without objection.
“There must have been a claim of right independent of the user, of which the defendant or those under whom he holds had express notice.”
While plaintiff in this ease does show a use of the ditch with the knowledge of the owners of the land, there is no testimony, not even by himself, that he ever informed any of the owners that he claimed anything more than a revocable license therefor until after defendant purchased the land in 1905, and trouble arose between the parties, or between defendant and plaintiff’s tenant.
Other evidence to which we have made no reference has no tendency to show that the ditch was originally constructed by the. mutual act or agreement of the parties or their grantors, or that it was constructed under an express agreement or understanding that the owners of the land now held by plaintiff thereby acquired a perpetual easement for its maintenance.
The decree below was right and it is — Affirmed.