Costello v. Pomeroy

Ladd, J. A careful reading of the record has convinced us that the construction of the drain increased the flow of [215] water upon plaintiff’s land to his damage, and that his grantor did not assent thereto. The fact that township trustees shared in the expense could in no way relieve defendant from liability for running the drain from his land upon that of plaintiff. But the defendant pleaded that the drain was a permanent structure, and that aft the damages to the land of plaintiff accrued at the time of its construction and before he acquired it. Powers v. City of Council Bluffs, 45 Iowa, 652; Peden v. Ry. Co., 73 Iowa, 333; and similar decisions, are relied on. In the recent case of Pettit v. Incorporated Town of Grand Junction, 119 Iowa, 352, former decisions were reviewed, and a conclusion reached against extending their doctrine so as to include “structures not ordinarily regarded as permanent in location or character.” It was also pointed out that the wrong in them considered did not consist in the creation of a nuisance where the party had no .right to be, but in negligently making an improvement where he had a right to construct it. We do not regard the ordinary tile drain as of the permanent character contemplated in these cases. It may be readily removed, and for its continued efficiency repairing and cleaning may be required. This one was placed on plaintiff’s land without right, and ought to be treated as a continuing, rather than a permanent nuisance. —Aeeirmed.