151 Iowa 723 | Iowa | 1911
The plaintiff owns the west half of the southwest quarter of section 34, township 87, range 25,.
The record discloses a distinct failure of proof with respect to the allegation that the natural flow of the drain'age is to the north, as well as the further claim that k ridge or watershed extends north and south along or near the west side of the land of the defendants. It does appear that at some time in the past a ditch had been constructed extending northward from the area now under consideration, but proved to be an engineering failure from want of sufficient fall to carry off the water. But the engineers produced by both plaintiff and defendants, while differing somewhat in the measurement of certain elevations, unite in ’saying that the natural flow from defendant’s land is west or northwest across the land of plaintiff and to the territory beyond. In this they are corroborated by the decided preponderance of nonexpert evidence. As is quite frequently the case in lands which are somewhat flat, there are, or originally were, on both these farms depressions below the general surface constituting sloughs or ponds; but the drainage therefrom is naturally discharged
Speaking of the course of drainage, plaintiff’s engineer, after describing the two ponds or chains of sloughs on the defendants’ land, says: “The water from these two chains of ponds all crosses Obe’s land and flows off to the west. It is about two hundred feet where they meet on Obe’s land to the west of his east line. ... It crosses Obe’s land to the west, and thence goes in a westerly direction. There is a well-defined water course. Prom Obe’s east line to the tile on Welty’s land is about one thousand two hundred and sixty feet. All the water on Welty’s lan'd drains onto Ohe’s land and _from there to the west. No water flows naturally to the north. It all flows naturally to the west.”
In argument counsel for appellee do not contend very •strenuously for the correctness of the claim that the true course of drainage is to the north; but they say that even if the flow be to the west, as defendants claim, and plaintiff’s estate be held to be servient to the defendants’ with respect to the natural drainage, yet the effect of the ditch
Since the decision of Livingston v. McDonald, 21 Iowa, 160, numerous cases involving the law of surface waters have come before this court for consideration. In many instances that precedent has been approved and followed, and in others it has been distinguished or held inapplicable. The tendency of the holdings is to recognize
We are of the opinion that the construction of the ditch of which complaint is madé in this action is fully justified under the terms of the statute, and that even under the law as it existed prior to the statute no ground for an injunction has been established. The ditch is wholly upon defendant’s own land; it discharges into a natural
It follows that the decree entered by the trial court can not be sustained, and it is therefore reversed.