| Iowa | May 11, 1889
The parties each own eighty acres of land. The line between their farms runs east and west, and the plaintiff owns eighty acres south, and the defendant the tract north, of the line. A stream of water enters plaintiff’s land from the east, near the northeast corner, and runs a short distance in a westerly direction, and curves to the north- across the line, and then in a southwesterly direction, to a culvert in the Chicago and Northwestern Railroad, which crosses the western part of the two tracts in a southwesterly direction. The defendant commenced cutting a ditch from the stream on his own land, and near the line, due wrest to the railroad right of way. The plaintiff objected to this, on the alleged ground that if the ditch should be completed the water would flow therein to the railroad, and then back on the west part of plaintiff’s land, to his injury. Both parties concede that the owner of agricultural lands has no right to collect surface water on his own land, and discharge it in a body upon the adjoining land, to the injury of the owner. The plaintiff contends that it is not mere surface water, but that it is a natural stream, with well-defined banks and channel. The defendant’s contention is that it is immaterial whether it is a natural stream or mere surface water. He claims that he has the right to cut the ditch and discharge the water on the railroad right of way, even if by flowing back it may injure the plaintiff ’ s land, because the plaintiff wrongfully diverted the water from his own land on the defendant’s land in the first instance, and the defendant has the right to turn it back. The principal contention in the case is, which is the dominant and which the servient estate? or, in other words, if the water as it enters plaintiff’s land
It is appai’ent from this statement that we cannot review the evidence. We will state the facts which, in our opinion, should be considered as established by the testimony. The stream of water which is the cause of all the contention and trouble is of recent origin. Some twenty years ago, before' the land was brought under cultivation, and when nearly all the adjacent country was in a state of nature, there was a low swale or slough which entered the plaintiff ’ s land at the point where it is now claimed there is a natural stream. The bottom of this slough or depression was then covered with grass. In times of rain the water flowed over it in a stream. A very decided weight of evidence is that the water did not then flow across the line and onto defendant’s land. It is true that at times of flood the water may have spread upon defendant’s- land, but actual levels show that the natural flow was over the plaintiff’s land to the southwest. The plaintiff improved his land some twenty years ago. The defendant did not improve until later. The water in the slough was a source of trouble to the plaintiff. He plowed and scraped in the slough on his own land. He and his witnesses claim that this was only for the purpose of straightening the bed of the stream. But we think the preponderance of the evidence is that this was done to prevent the water from flowing in a southwesterly direction over his land. Indeed, we think it is fairly shown that he, by the use of boards and banks of earth, turned the water upon the defendant’s land. If this be correct, — and, as we have said, we think the evidence fairly establishes it, — the defendant