140 Iowa 570 | Iowa | 1908
— Defendant conducts the sewage from its creamery through a tile drain constructed by it through plaintiff’s land, and discharges it at a-point thereon where plaintiff contends it has no right to do, to his loss and damage. It is also contended that the discharge creates a nuisance, and he "asks that the nuisance be abated. Defendant admits the construction of the tile drain, claims that it was put in by arrangement and agreement with plaintiff, denies that the discharge creates a nuisance, denies any damage to plaintiff, and further pleads that it is using the drain under permission and license from plaintiff. It pleads that it paid a consideration for this license, and that, while in parol, it can not be revoked by plaintiff. The trial court sustained defendant’s contention, and plaintiff appeals.
Defendant’s creamery is north of the town of Ruthven, and plaintiff’s land lies to the north of the creamery building; the south line being about ten rods from defendant’s building. Plaintiff’s land is a tract of one hundred and sixty acres, and the Minneapolis & St. Louis Railway runs diagonally 'through the land from near the southeast to near the northwest corner. It passes not far west of the center of the land, and the right of way is twice crossed by the tile in question. On the north and east sides of the land are public highways. There are, as
Not far from the open ditch and to the westward,
Plaintiff contends, however, that the license was upon condition that the tile be constructed across his land and discharged into the highway. There is a dispute in the testimony with reference to this matter, but we are constrained to hold that no such condition was exacted. All that defendant was to do on plaintiff’s land, as we think, was to take up the line of threeunch tile and put in place thereof six-inch tile. This it did, and it was not required to carry the same entirely across the northwest quarter of plaintiff’s land. That defendant obtained a license to put in the tile, to discharge its sewage therein, and that it expended money on plaintiff’s land on the strength thereof and conferred some benefit upon plaintiff in draining the slough at the southeast corner of the land is so well established by the, evidence as to be beyond the realm of dispute.
But plaintiff contends that the license can not be proved by parol testimony, that' the work done was of no benefit to him, and that at any rate the license was revocable at his, plaintiff’s, pleasure. None of these propositions can be sustained. Conceding arguendo that tire license claimed by defendant was such an interest in land
Lastly it is contended that the alleged license is not satisfactorily proved, in that the terms thereof were uncertain and not sufficiently specific. To this we can not agree. The contract was certain, and it is sufficiently established. The trial court did not err in dismissing plaintiff’s petition. — Affirmed.