126 Iowa 334 | Iowa | 1905
Plaintiff is the owner of the S. E. one-fourth of the S. W. one-fourth of section 31, in Webster county, Iowa, and defendants Cooper of the N. W. óne-fourth of the N. W. one-fourth of section 2, in Calhoun county. These lands are separated by a highway which runs east and west between the two counties. As this highway is a correction line, the north and south lines of the two tracts do not exactly correspond. Plaintiff’s west, line is some distance west óf defendants’ west line, and the east lines of the two tracts show the same divergence. However, for all practical purposes we may treat the lines as continuous. To the west of both properties, running north and south, is a natural stream, known as “ Cedar Creek,” over which, in the line of the highway, is a 25-foot bridge. East of that the land is almost level, the natural drainage-being towards the south. Some distance east of the creek bridge and south of the west fourth of plaintiff’s land there is a culvert, which we shall call “ culvert No. 1,” across the highway, which is about one and a half feet higher than the banks of the creek. East of the culvert the land is somewhat lower, and still east of that a trifle higher, than at the culvert. East of this point the land again descends slightly toward the east until it reaches another culvert between plaintiff’s and defendant Coopers’ lands. This we shall call “ culvert No. 2.” East of this culvert the land again rises slowly and gradually. At culvert No. 2, which drains-a large part of plaintiff’s land-and all the land immediately east thereof, a ditch was constructed by defendant Coopers’ father southwesterly through his land until it reaches Cedar creek to the west. On the southwest corner of plaintiff’s land are two ponds, one of which extends into the highway, culvert No. 1 being at the west side thereof. There are also at least two ponds on the southeast corner of plaintiff’s land, the overflow from which drains through culvert No. 2. Culvert No. 2 was constructed more than twenty years ago, and it carried the surface water from nearly all of the plaintiff’s land down upon and through
Commencing with culvert No. 1, the elevations in the highway going eastward are as follows: At the culvert, 100; just east of the pond in the highway, 99.95; at the north side of highway, where the fill of -which complaint is made was put in, 100.32; and on the south side of the highway, at same place, 99.96; a few rods east of this fill, 99. These are all the data we have, save that the elevations show a nali-ural drainage from the pond in the highway southwesterly over the land owned by Tl'inch, with a divide between the Hinch and the Cooper 'land, the elevation of which varied from 101.20 at the north end thereof to 100 at the south. As near as we can gather from the evidence, culvert No. 2 was built about the year 1875, and ditches made in the north side of the highway to convey the water thereto. Culvert No. 1 was built by order of the board of supervisors in the year 1899. At the same time a road was thrown up through and across the pond, and a ditch dug on the north side of the highway, commencing at or near the’pond, and running east along the highway through the slight divide of which wo have spoken, until it connected with the ditches theretofore constructed to carry the water to culvert No. 2. At the highest point in the highway between culverts 1 and 2 this ditch was two and a half or three feet deep. It was originally dug by a contractor under the county, and down until about the year 1897 carried the water from the southwest part of plaintiff’s lands and the overflow from the ponds which did not pass through culvert No. 1 along the highway
However there is no evidence that the defendants Cooper had anything to do with that part of the ditch which they obstructed. When the improvements were made at culvert No. 2, the defendants Cooper did assist in making ditches to take care of the surface water coming from the southeast part of the plaintiff’s land and the land lying east of plain
The decree in so. far as it is based upon an estoppel is wrong, in that no estoppel is pleaded. On the issues as presented, to us the plaintiff is not entitled to a decree, and the judgment must therefore be reversed.