143 Iowa 221 | Iowa | 1909
The appellant is the owner of the S. E. % of section 12, and the N. E. ^4 of section 13, in, Morgan township, Harrison County. This is a part of a large tract of nearly level land lying between the Soldier River and the Missouri River. On that part of the tract lying next to the Soldier River there was a slight inclination in the surface of the ground south and east toward the Soldier River. On the westerly side of the tract there was a slight inclination south and west toward the Missouri River. The difference in elevation, however, was so slight that, prior to the construction of the levee in question, the overflow of either river alone would carry the surplus waters across the entire tract into the other river. We infer from the record that the conditions which would cause an overflow in one of these rivers would not necessarily cause an overflow in the other; the Soldier River being affected more, and the Missouri River less, by local weather conditions. Therefore it was deemed advisable, by the several owners of the land in the tract, to emphasize the “divide” between the two watersheds,
It is contended by appellant in the equity suit, that all that he now desires to do is to lay tile drains underground under the levee in question. He contends also that such tile drain would not have the effect to interfere with the effectiveness of the levee to separate the flood waters of the rivers. Whether the tile drain so laid would have the effect of transferring flood waters from one side to the other we have no occasion now to consider. From the evidence in this record it would be very difficult to reach a satisfactory conclusion. Appellant has no legal right to cut the levee, even temporarily, and thus endanger the property of his neighbors. He suggests no method, nor purpose on his part, to lay such tile without cutting the levee.
The decree as entered deprives the appellant of no legal right to which he is entitled. The question of the power' of the board of supervisors to establish a drainage district, and to adopt a new scheme of drainage, is not involved in either case, and is not affected by the decree entered. Our conclusion on this point is decisive of both cases. We, therefore, place our affirmance of both cases upon this ground, although there are other grounds upon which the judgment in the action at law would have to be affirmed.
The judgment and decree in both cases are affirmed.