130 Iowa 401 | Iowa | 1906
Plaintiff is the owner of the E. y% of the S. E. y±, section 20, township 88, range 34, in Calhoun county. Defendant is the owner of the N. y¿ of said section, and also the S. % of the S. W. x/4 of section 17, said township and range. Section 17 lies immediately to the north of section 20. Plaintiff’s ownership- dates from the year 1899. Prior thereto, and antedating the year 1892, ownership was in one 'Cox. Defendant’s ownership antedates the year 1892. Located on the S. E. % of section 17, owned by one Cassavaw, is a natural depression of many acres in extent, and in its natural state water was accustomed to stand therein for a portion if not all the year. On the land of defendant near the west side of the N. E. % of section 20, and about midway of the quarter north and south there is a natural depression of several acres in extent, and at a short distance to the east and south of this is another depression, also of several acres. As to the former, while in a state of nature, water stood during a portion of the year, while the latter was swampy in character. On
It will be observed that plaintiff does not complain of the existence of the open or big ditch. Nor could he be heard to do so. Vannest v. Fleming, 79 Iowa, 638. His contention is that the right of use thereof must be confined to the precise conditions attending and immediately following its construction. But this cannot be sustained as sound in reason, and we are not cited to any supporting authority. The consent given to dig the ditch went beyond the servitude existing by operation of law, and gave to defendant and those associated with him the right in draining their lands to go to lower levels than would be affected in a state of nature. Moreover the easement thus created was not limited to the drainage of any particular pond or depression; it was to enable them to reclaim their lands. Had the drain now complained of been put in when the ditch was dug, and as a paid thereof, no one would contend that such was not covered by the consent. If rightfully it might have been done then — and as the easement may not be revoked but runs with the land —■ it may rightfully be done now. But, if this were not so, our reading of the case satisfies us that the fact conditions bring it within the rule of Williamson v. Oleson, 91 Iowa, 290, and the recent cases of Dorr v. Simmerson, 127 Iowa, 551, and Hull v. Harker, 130 Iowa, 190.
It follows from what we have said that the decree was right, and it is affirmed.