Neuhring v. Schmidt

Bishop, J. Plaintiff is the owner of the E. y% of the S. E. y±, section 20, township 88, range 34, in Calhoun county. Defendant is the owner of the N. y¿ of said section, and also the S. % of the S. W. x/4 of section 17, said township and range. Section 17 lies immediately to the north of section 20. Plaintiff’s ownership- dates from the year 1899. Prior thereto, and antedating the year 1892, ownership was in one 'Cox. Defendant’s ownership antedates the year 1892. Located on the S. E. % of section 17, owned by one Cassavaw, is a natural depression of many acres in extent, and in its natural state water was accustomed to stand therein for a portion if not all the year. On the land of defendant near the west side of the N. E. % of section 20, and about midway of the quarter north and south there is a natural depression of several acres in extent, and at a short distance to the east and south of this is another depression, also of several acres. As to the former, while in a state of nature, water stood during a portion of the year, while the latter was swampy in character. On 403 plaintiff’s north forty, and a little to the north and east of the center, is another depression of a few acres in extent and swampy in character. The general slope of the lands from section 17 is south and southeast across defendant’s land and the north forty of plaintiff’s land. High lands to the east and west make what may be called a “ swale ” or “ ravine,” along the center line of which lie the depressions of which we have taken note. Being desirous of draining their lands, defendant and Oassavaw, together with one Webb, who owned lands adjoining defendant’s to the northwest, in the year 1892 formed a plan for the construction of a ditch down along the natural course of drainage to connect with Hell Slough creek, a natural water course distant a few rods south and east of the lands then owned by Oox. Consent to cross his land was obtained from Cox, and during the year mentioned, there was dug what is spoken of in the record as the “big ditch,” extending from the large pond on section 17; thence south and east across defendant’s land, connecting with the two depressions mentioned ; thence south across the north forty of the Cox land, connecting with the depression mentioned as being thereon; thence southeast and across -the line into section 21, and having its terminus in the creek. This ditch has been maintained ever since its construction. On the lands of defendant, and lying east and west along the line between the S'. W. % of section 17 and section 20, is a string of natural depressions, small in extent of acreage, and .swampy in character. To the south of the easternmost of these, and about midway between the same and the pond of which mention has been made, being the one connected with the open ditch, is another small depression, also swampy in character. In October, 1903, defendant proceeded to connect the string of depressions, and the small one to the south thereof, with the pond, by an underground ton-inch tile drain. The work was constructed along the natural course of drainage, and the.evident purpose thereof'was to 404 drain the depressions to a lower level than would obtain if left in a state of nature. It is the construction of this tile drain that plaintiff seeks to have enjoined in this action. And his contention is that the effect of such drain, if allowed to be put in operation, will be to bring into the ditch, and upon his land by overflow, large quantities of strange, and, at times, sudden accumulations of water to his great and irreparable injury and damage. It will be observed that plaintiff does not complain of the existence of the open or big ditch. Nor could he be heard to do so. Vannest v. Fleming, 79 Iowa, 638. His contention is that the right of use thereof must be confined to the precise conditions attending and immediately following its construction. But this cannot be sustained as sound in reason, and we are not cited to any supporting authority. The consent given to dig the ditch went beyond the servitude existing by operation of law, and gave to defendant and those associated with him the right in draining their lands to go to lower levels than would be affected in a state of nature. Moreover the easement thus created was not limited to the drainage of any particular pond or depression; it was to enable them to reclaim their lands. Had the drain now complained of been put in when the ditch was dug, and as a paid thereof, no one would contend that such was not covered by the consent. If rightfully it might have been done then — and as the easement may not be revoked but runs with the land —■ it may rightfully be done now. But, if this were not so, our reading of the case satisfies us that the fact conditions bring it within the rule of Williamson v. Oleson, 91 Iowa, 290, and the recent cases of Dorr v. Simmerson, 127 Iowa, 551, and Hull v. Harker, 130 Iowa, 190. It follows from what we have said that the decree was right, and it is affirmed.