127 Iowa 744 | Iowa | 1905
The plaintiff is the owner of the south one-half of the northeast quarter of section No. 9, in township No. 69, range 39, and of other lands adjoining the same on the south and west. The defendant Julia Maxwell is the owner of the northwest quarter of section 10 in the same township and range, which is east of the plaintiff’s land, and the lands of these parties are separated by a public highway running north and south. The intervener, George Maxwell, is the owner of the southeast quarter of section 4,
As we view the case, it makes but little difference whether the Maxwells changed the course of the branch or not, although the weight of the evidence shows that it was purposely done by some one, and the presumption is that it was authorized by them. Shortly before this suit was commenced, George Maxwell, the intervener, was made road supervisor of the district including the highwajy in question, and upon his threatening to tear down the plaintiff’s dike suit was commenced and a temporary restraining order issued. The office of road supervisor was afterwards abolished by the legislature, and he then intervened, alleging, as did Mrs. Maxwell in her answer, that the plaintiff’s dike diverted the water onto their land in unnatural quantities, and that it was therefore a nuisance. The case was referred to a referee, who took the evidence and reported findings against the plaintiff. The report was confirmed by the district court, and the plaintiff was ordered to remove so much of his dike as obstructed the flow of water onto his land through the roadway at the bridge in question. The prin
Every material part of tbe preceding statement of fact is fully proven by tbe record, and, while a great number of witnesses testified in a general way as to tbe course of tbe water over tbe lands in question before tbe road was graded, tbe practically undisputed physical facts so completely negative tbe conclusion which tbe referee and trial court deduced from tbeir testimony as to render it of but little value. Two surveys of these premises were made for' tbe purposes of the trial, one for each side of tbe controversy, and botb by competent and reliable men. The[y practically agree as to tbe topography of tbe land involved in so far as tbeir work followed tbe same lines, and we have been greatly aided by a careful study of tbe original maps made by tbem, and filed as exhibits in the case. Where tbey covered tbe same ground, tbeir elevations are practically tbe same, and tbe great number of elevations shown by the plaintiff’s map where tbe defendants’ surveyor took none are in no case contradicted by an!fy evidence in tbe case, except where the eyes alone of some of the witnesses have fixed an elevation tbat is contradicted by tbe instruments of botb surveyors. Tbat tbe effect of the Maxwell dike has been to obstruct tbe natural flow of tbe water and to cast it upon tbe plaintiff in botb a greatly increased quantity and for years at an entirely different place is proven to our