131 Iowa 511 | Iowa | 1906
The plaintiff and defendant ara, respectively, tbe owners of tbe N. W. % and the S. W. % of
■ In this litigation the claim of plaintiff is to the effect that his land is higher than that of defendant, and, by reason of such situation, the surface and flood waters upon his
By the civil law, however, where two adjacent tracts of land are not of a common elevation, the lower estate owes a servitude to the upper to receive all the natural drainage in its direction, and the lower cannot reject, nor'can the upper withhold, the supply, except as this obligation may be modified by the reasonable demands of good husbandry. Martin v. Jett, 12 La. 501 (32 Am. Dec. 120); Adams v. Harrison, 4 La. Ann. 165; Butter v. Peck, 16 Ohio St. 334 (88 Am. Dec. 452); Livingston v. McDonald, 21 Iowa, 160. This court has never adopted either rule in its entirety, though the general principle of the civil law in this respect, and especially as applied to rural lands has frequently been approved. Livingston v. McDonald, supra; Vannest v. Fleming, 79 Iowa, 641; Wharton v. Stevens, 84 Iowa, 107; Brown v. Armstrong, 127 Iowa, 175; Keck v. Venghause, 127 Iowa, 529. It has never been held that, in addition to the burden of natural drainage, the lower proprietor is required to receive the drainage diverted in his direction by artificial means or agencies, in the absence of circumstances estopping him to object thereto. Martin v. Jett, 12 La. 501 (32 Am. Dec. 120); Wheatley v. Baugh, 25 Pa. 528 (64 Am. Dec. 721); Livingston v. McDonald, supra.
While it is a matter of dispute between witnesses, we think the record fairly shows that the railway embankment, above referred to, serves to intercept the#water which, moving from the west, would naturally escape by a more direct route to Lost creek, and carry it northeast where, passing through openings or culverts in the railway grade to the appellant’s land, it spreads again to the southward. Some of these waters doubtless reach Lost creek by way of the swale, while others are carried by appellant’s ditch to the north line of appellee’s land, and thence eastward. This theory is not only supported by the direct testimony of the observers, but finds corroboration in the fact that, after the
The trial court had the witnesses before it, and gave to the ease long and patient consideration; and, after a thorough investigation of the record as presented on appeal, we are satisfied with the conclusion there announced.
The decree is affirmed.-