131 Iowa 125 | Iowa | 1906
The case involves the rights of the owner of a servient estate as' against the owner of the dominant one with reference to the flow of surface water. Such cases are not infrequent, now that we are having the normal, or perhaps slightly abnormal, waterfall in the northern half of the state. During the dry seasons which lasted for many years prior to the past three or four, no such controversies arose, as our Deports abundantly verify. Plaintiff’s farm lies south of defendant’s, and between them is an eightv-acre tract owned by one Scheueman. The natural flow of the surface water is southward, and plaintiff is the owner of the servient estate. It is the law of this jurisdiction that, while the servient estate is bound to take the natural flow of surface water, the owner of the dominant one' cannot collect it and cast it upon the lower proprietor in a different manner from which it flowed by nature, nor may he materially increase the quantity thereof to the injury of the lower land. The water from defendant’s land comes down through the Scheueman land, and is cast therefrom upon the land of the plain
It is claimed that, but for the construction of this drain, the water would stand upon defendant’s land until it soaked away or was evaporated by the elements, and 'that by the construction of the drain the flow of water on plaintiff’s land will be materially increased. This is purely a fact proposition, and we have gone over the record with care to determine the truth of the matter. Our conclusion is that plaintiff has not shown that the flow of water upon his land will be increased to any material degree; that whatever the increase, if any, it will be taken up by the Scheueman land before it reaches that owned by plaintiff, and that for much of the claimed increase in flow defendant is not responsible, it being due to the action of the county authorities in draining and ditching a county highway just south of defendant’s land. Moreover, the tile which defendant proposed to lay were to be placed in the bottom of old ditches which had existed for from twelve to fifteen years without objection from any one, through which practically the same amount of water was discharged as defendant now proposes to carry off with his tiling. This being true, plaintiff is not entitled to the relief demanded. Wharton v. Stevens, 84 Iowa, 107; Plagge
The decree seems to be right, and it is affirmed.