144 Iowa 563 | Iowa | 1909
Plaintiff and defendant are the owners of adjoining tracts of land; defendant owning the dominant and plaintiff the servient estate. Plaintiff claims that defendant constructed a tile drain upon his land in such a manner as to collect and discharge surface and subterranean water in a manner different from the natural discharge and in larger quantities, to plaintiff’s damage. Defendant admitted the construction of the tile drain in the year 1905; but he says, among other things, that he laid it in the course of natural drainage, and substantially in a mole ditch, which had been constructed in the year 1875 by one who owned both tracts of land; that his tile drain does not discharge any more water upon plaintiff than has gone there since the year 1875, and that as the tile drain ended on defendant’s land, and did not directly discharge water upon the plaintiff, there can be no recovery for the reason that the water rose from the outlet of the tile, which was something like one foot below the level of the ground, and spread out upon the ground, and ran upon plaintiff’s land in its natural course, according to the usual laws of gravitation. Appellee contends that the case was properly decided in the district court, for the reasons (1) that plaintiff did'not show he had sustained any damage due to the construction of the tile drain; (2) that there is no evidence to show that defendant materially or unduly increased the volume of water which naturally went upon plaintiff’s land; and (3) that by reason of the construction and use of the mole ditqh many years ago, defendant acquired a prescriptive right to discharge the water through the tile drain.
A contour map and a plat and profile of the drainage system involved, introduced in evidence in the court below, have been certified to this court, and from these and the testimony adduced, which we have carefully reviewed, we find the following facts: Surface water from the north and west of defendant’s land comes upon his property through culverts in highways to the north and west, and is carried over and across his premises to a point a few feet north of defendant’s south line, where i,t turns to the south and empties into a big ditch which extends into plaintiff’s land, where it runs for several rods, and is then discharged into Buck Creek, and from there it runs into a river. When not running in a well-defined channel, this surface water follows natural depressions or swales across defend
The trial court was right in dismissing the petition, and its decree must be, and it is, affirmed.