Keck v. Venghause

SheewiN, O. J. The facts in this case are practically undisputed, and are briefly as follows: The defendants M. McOlurkin and J. A. Yenghause are the owners of farm lands in ther>southeast quarter of section 1, township 73, range 4, and the other defendants are the owners of farm lands either adjoining or near thereto. The. plaintiff Keck is the owner of the northeast quarter of section 32, township 74, range 3, and the plaintiffs Key and Williams own lands in sections 36 and 31 of’the same township and range. Otter creek is a creek of considerable size; one of its branches having its source about seven miles southwest of the McOlurkin land, and the other or west branch thereof having its source about six miles west of tire McOlurkin land. The two branches come together on the McOlurkin land, and the stream then flows northeast into a water course known as the “ County Ditch.” The creek is a natural water course, with a well-defined channel, which is from ten to fourteen feet deep, and from forty to fifty-five feet wide where it passes through section 1, township 73, range 4; and water flows there continuously and continues on through the county ditch into the Iowa river. The depth and width of the channel are about the same for a mile and a half or two miles down the stream from McClurkin’s, but from there it gradually shallows until it reaches Keck’s land, where it is only about 5 or 6 feet deep. In times of ordinary flood, and when Otter creek is running only bank-full, all of its water is discharged through its channel along the defendant’s lands, but when the channel there is bank-full the stream overflows on the plaintiff’s lands, because of the lower banks and slower current. In times of 531 very high, water the creek overflows its banks through the McClurkin land, and the water, thus leaving the channel of the creek, spreads out over about a thousand acres of farming land east and northeast, and some of it eventually finds its wa^y back into the stream, several miles below. These overflows along the McOlurkin land are occasional only, and, when they do occur, the water goes over the bank for a distance of about 1,200 feet in length, and sometimes to a depth of two or three feet. It thereafter follows no well-defined channel, but spreads over cultivated fields in an east and northeasterly direction; none of it, however, ever reaching the plaintiffs’ lands. To prevent this overflow of their lands, the defendants began the construction of a levee substantially parallel with the east bank of Otter creek, and extending some distance along the same. The plaintiffs thereafter commenced this suit to enjoin the construction of the levee, alleging that, if built, it would divert the flow of water to the channel of the creek, and that such diversion of the water would cause the flooding of the stream below and the overflow of their lands. The legal question thus presented for determination is an interesting one, and it is not. entirely free from doubt, either under our own decisions, or under the decisions of the courts generally. It may be stated thus: May a riparian proprietor embank against the natural overflow from an inland stream, when the effect may be to cast an increased volume of water upon the land of other proprietors, to their injury ? Reason and justice should answer the question in the negative, and we believe that the weight of authority has so answered it. The rights of riparian proprietors on both navigable and unnavigable streams are to a great extent mutual or common, and it is a fundamental rule that the use of that which is common to all must be reasonable. The riparian proprietor selects his location for the benefits which maJy come to him from the common use of the stream, and it is manifest that he should not be permitted to do any act relative thereto that 532 will result in substantial injury to another riparian owner, either above or below. Gould on Waters (3d Ed.) sections 160-204, and cases cited; 2 Cooley’s Blackstone (3d Ed.) 121; East Jersey Water Co. v. Bigelow, 60 N. J. Law, 201 (38 Atl. 631); Tillotson v. Smith, 32 N. H. 90 (64 Am. Dec. 355); Rex v. Trafford, 1 B. & A. 874; Angell on Water Courses (7th Ed.) section 334; O’Connell v. East Tenn. Ry. Co., 87 Ga. 246 (13 S. E. 489, 13 L. R. A. 394, 27 Am. St. Rep. 246); Burwell v. Hobson, 12 Grat. 322 (65 Am. Dec. 247); Crawford v. Rambo, 44 Ohio St. 279 (7 N. E. 429); K. C., M. & B. R. Co. v. Smith, 72 Miss. 677 (17 South. 78, 27 L. R. A. 762, 48 Am. St. Rep. 579). The general proposition stated above is not seriously controverted by the appellants, but they contend that the overflow from Otter creek onto the defendant’s land is surface water, and that it may be repelled, in the interest of good husbandry. It may be doubtful whether the overflow onto the defendant’s land is, strictly speaking, surface water, but it will probably have to be so treated, under former decisions. Morris v. City of Council Bluffs, 67 Iowa, 343. If it be so named and treated, how does it affect the respective rights of these litigants. By the civil law the lower land owed to the higher the servitude of receiving all of the water which naturally, without the hand of man, flowed down upon it; and in Livingston v. McDonald, 21 Iowa, 160, this court, speaking through Mr. Justice Dillon, adopted the rule of the civil law so far as it denied to the upper owner the right to collect the water in a body or precipitate it in greatly increased or unnatural quantities upon his neighbor to his substantial injury. This rule has been adhered to and many times cited in the decisions of this court, and is firmly established; the latest recognition thereof being in the case of Brown v. Armstrong, 127 Iowa, 175. Neither the owner of a dominant nor of a servient estate has the right to dam or to collect surface water and cast it upon his neighbor in an increased or unnatural way or quantity, to his injury. Iowa cases supra and Sullens v. C., R. I. 533 & P. Ry. Co., 74 Iowa, 659; Moore v. Ry. Co., 75 Iowa, 263; Noe v. Ry. Co., 76 Iowa, 360; Houghtaling v. Ry. Co., 117 Iowa, 540. This bolding is, at least, a partial departure from tbe rule of tbe common law, and entirely fails to recognize tbe rule of good husbandry contended for by tbe appellants. In Wharton v. Stevens, 84 Iowa, 107, relied on by tbe appellants, to sustain tbeir right to repel- surface water, tbe rule of tbe Livingston Case was approved; but it was held that it was not applicable to that case, because no increase of water was thrown on tbe plaintiffs land; and such was also the express finding in Vannest v. Fleming, 79 Iowa, 638. It is contended further, that Hoard v. City of Des Moines, 62 Iowa, 326, and Morris v. City of Council Bluffs, 67 Iowa, 343, are authority for building tbe levee in question. In both cases tbe municipalities constructed embankments which repelled so-called surface water and cast it upon tbe plaintiffs, to tbeir injury; and, if cities have no greater rights in tbe matter than individuals, tbe cases would sustain tbe appellants’ claim. Tbe statute gives such corporations tbe right to grade tbeir streets, and tbe adjoining land or lot owner» tbe corresponding right to bring tbeir lots or lands to tbe established grade, and for these reasons a different rule has been applied to cities. Cedar Falls v. Hansen, 104 Iowa, 189; Furniture Co. v. City of Davenport, 99 Iowa, 589; Sullens v. Ry Co., supra. Tbe appellants further contend that, even if tbe law is found against them on the main proposition, tbe plaintiffs have not proved that they will suffer damage by reason of an increased flow of water down Otter creek, and base this contention on tbe undisputed evidence that tbe lower land is overflowed before tbe water overflows tbe banks through tbe McOlurkin land. Tbe trial court found against them on this proposition. It is undoubtedly true that a riparian owner may repel tbe water and cause it to flow in tbe channel of' the stream which it has left, if by doing so be inflicts no injury on his neighbor. If an injury to tbe lower land will as certainly occur without tbe embankment, because of tbe 534 natural overflow, the party seeking an injunction must prove that the additional water cast upon his land will in fact damage him; and this, we think, has not been done, and the writ should have been refused. Warner v. C. & N. W. Ry. Co. 120 Iowa, 159; Collins v. Keokuk, 91 Iowa, 293; Dorr v. Simerson, 73 Iowa, 89; Plagge v. Mensing, 126 Iowa, 737. — Reversed.