170 Iowa 315 | Iowa | 1915
Plaintiffs are owners of the S. E. % S. "W. % of section 9, and also the W. *4 of that section, and the E. 14 of section 8. The defendants own the N. E. % S. "W. % and. the W. y2 S. E. % of section 9, and the N. W. % N. E. % of section 16, and the E. 20 acres of the N. E. 14 N. "W. 14 of that section. The natural drainage from quite a large body of land from the north is over the N. E. 14 S. W. % of section 9, and through a swale extending therefrom to an artificial ditch in the forty below, that is, the S. E. % of the S. W. % of said section, belonging to plaintiffs. This ditch extend°s from Clear Creek north to within three or four rods of the division line between the forties. The owner of the land below excavated the ditch from the creek to the south line of plaintiffs’ forty, and their father from thereon north. This was done in 1884, and the ditch has been maintained since that time. From the upper end of the ditch, north several rods into the defendants’ forty, defendants contend that there is a natural swale or depression variously estimated to be from ten inches to two feet in depth and several feet in width; while plaintiffs claim that this is merely the low center of a swale fifteen or twenty rods wide, and was sodded all the way.
The record is without any evidence that these tile drains gathered more water or threw it on the plaintiffs’ land differently than before these were laid, and such an inference cannot be supplied by theories. Plagge v. Mensing, 126 Iowa 737. The furrow may have tended to collect the water and have increased the erosion. At any rate, at the time suit was instituted, we are satisfied that there had become a sort of a mudhole or cattle wallow north of the line, and that a well-defined waterway had been cut from there south emptying into the artificial ditch. Thereafter, plaintiffs could not well cross with their machinery, and they constructed a dam or roadway south of the division line and parallel therewith, about ninety feet long by twelve or fourteen feet wide, with plank along the south side, with spillway, and a seven-inch tile through it. The tile was so placed that it did not carry off the water, and the effect of the dam was to hold the water back on defendants’ land at least to the top of the tiles; whereas, prior thereto, the water had passed from the tile drains down through the artificial ditch in plaintiffs’ land.
These are but conclusions with reference to the facts upon an examination of the record, and we shall now take up the questions raised by appellants.
The right so to do is so clearly vindicated by these authorities that nothing need bef added even to show that counsels’ suggestion, that tiling along a watercourse alone is contemplated by the above statute, is without foundation.
Appellants’ third proposition has been disposed of in saying that there was no proof of an increased flow of water in consequence of the laying of the tile. — Affirmed.