155 Iowa 347 | Iowa | 1912
During the summer of 1909, the plaintiff was in possession as tenant of a farm of one hundred and sixty acres situated in Harrison county, and had growing on such farm crops of wheat and corn. On the north side of this farm is a highway, and the natural course of the surface water is from higher ground to the north across such highway and upon and' over the land occupied by plaintiff. There is evidence tending to show that prior
It is elementary law that one person has not the right to relieve his own property of a mischief by causing a similar mischief to the land of his neighbor. And this is not inconsistent with another rule that if a danger of injury is common to two persons, one of them may avert the in
The rule announced in an early case in this state, that one person may not improve his land for the purpose of- -freeing it from surface, water by throwing the water upon the land of another, to his injury, in a different man-' ner from that in which It would naturally have flowed (Livingston v. McDonald, 21 Iowa, 160), has been somewhat modified in the interest of agriculture, so that the upper proprietor may drain -his land into a natural water course without liability to a lower proprietor for resulting damages, although -the effect of such drainage is to throw the surface water in somewhat increased volume at times on the land of the lower proprietor. Dorr v. Simmerson, 127 Iowa, 551; Hull v. Harker, 130 Iowa, 190. But the principle has still been maintained that the upper proprietor may not discharge collected water upon lower land, even though in a water course, in an unusual manner or in unusual
Counsel argue that the highway embankment without-proper openings was a nuisance which the defendants might rightfully abate by their own action, but we find no authority for so abating a nuisance as to throw the resulting injury upon some one else who is in no way at fault for its existence. The act of the defendants was not an instinctive and involuntary act in avoiding the injury
One witness was allowed to state the condition of plaintiff’s growing com in the latter part of June and others to testify as to its condition about the middle of August. But such testimony was part only of the general description of the plaintiff’s corn crop which tended to show that, until it was submerged in water on the 6th and Ith of July, it was a good crop, and that, as the result of being thus submerged it was almost destroyed; the damaged condition in August being the natural consequence of the flood caused by defendants’ acts. Witnesses might, therefore, properly testify as to what the value per acre of the crop was in June, and what its value per acre was in August; the diminution in value appearing plainly to have been due to the flood,
We find no error in the record, and judgment is affirmed.