Albright v. Cedar Rapids & Iowa City Railway & Light Co.

Sherwin, J.— The plaintiff is the owner of the N. E. % of section 24, township 80, range 7, Johnson county, and one James Lacina owns the S. E. *4 of the same section. The two quarters are separated by a public highway running [645] east and west. The defendant’s railway crosses both quarters from north to south near the center thereof. It acquired the right of way, one hundred feet in width, over both pieces of land by condemnation proceedings. Some three hundred or four hundred feet south of the north line of Lacina’s quarter, there is a natural swale or water course which drained the adjacent land and carried the water to the east before the defendant’s road was constructed. In the construction of its road the defendant failed to provide for the passage of the water down this natural swale, but made a solid roadbed over the same and made a ditch on the west side of its right of way, which collected and carried the water which had formerly been carried east by the swale, north across the public highway, and some eight hundred and fifty feet onto the plaintiff’s land, where it was carried through its road by a pipe culvert and discharged onto the plaintiff’s land east on the defendant’s right of way. The record conclusively shows that the water so discharged on the plaintiff’s land has damaged him, and that, if the defendant is permitted to continue the ditch, further damage will be done to the plaintiff. 1. Drainage:surface water: It is a rule of long standing in this State that a landowner may not collect surface water and discharge it upon his neighbor below in an unusual quantity or in a different manner. Sullens v. Railway Co., 74 Iowa, 659: Livingston v. McDonald, 21 Iowa, 160; Keck v. Venghause, 127 Iowa, 529. It is also a general rule that a railway company has no right to neglect or refuse to construct sluices or culverts where they may be necessary for the conduct of water in its natural course and by so doing flood the adjoining land; in other words, a railway company is bound to provide suitable passageways for the water in streams or for the water which flows in the natural water course, when, by failure to so do, the water will be diverted and flood the adjoining land to the injury of the owner thereof. Gould on Waters (3d Ed.) [646] section 256; Noe v. C. B. & Q. Ry. Co., 76 Iowa, 360; Houghtaling v. Chicago Gt. W. Ry. Co., 117 Iowa, 540. 2. Same. To meet this proposition, the appellant contends that tbe damages paid to tbe plaintiff for its right of way over bis land include any damage wbicb be may suffer by reason of tbe diversion of tbe water onto bis land; that, it not being shown that it was negligent in tbe construction of its railway, no cause of action exists for tbe injury complained of. A sufficient answer to tbis contention is to be found in tbe fact that tbe water wbicb is now carried onto tbe plaintiff’s land by tbe ditch in question is gathered from land belonging to another, and wbicb is separated from tbe plaintiff’s land by a public highway. Tbe plaintiff, even if be had made a voluntary conveyance of tbe right of way, would not have been bound to anticipate that tbe defendant would dam a natural water course on another’s land, a half mile or a mile away from him, and by so doing flood bis land to bis damage. We know of no case which goes to tbe extent of bolding that such damages are within tbe contemplation of the parties in right of way matters, and we have been cited to no case wbicb so bolds. On tbe contrary, tbis court has held that, in procuring tbe right of way, railway companies do not thereby acquire tbe right to divert a stream of water from its natural channel to tbe injury of the landowner; and tbis rule applies as well to tbe diversion of surface water from its natural course. Stodghill v. C., B. & Q. R. Co., 43 Iowa, 26; Van Orsdol v. B. C. R. & N. R. Co., 56 Iowa, 470; King v. Iowa Midland R. R. Co., 34 Iowa, 458. 3. Same: injunction. Tbe appellant contends that, if tbe rule above announced be conceded, tbe plaintiff’s only remedy is in an action for damages, and that it was error to grant an injunction restraining tbe defendant from maintaining tbe ditch in question and commanding it to close tbe same. This contention is based upon tbe evidence of its engineers that a culvert for tbe passage of water at tbe point in question on tbe Lacina land would be inconvenient. Tbis [647] proposition does not appeal to ns very strongly, however. There is a fill of about two feet at the point in question, and we see no valid reason why a culvert may not be constructed without serious injury to the plaintiff’s road and without damage to the traveling public. It is undouhtly true that the plaintiff might maintain an action for damages, if he had chosen that form of relief; but, notwithstanding that, he is entitled to an injunction restraining the defendant from a continued invasion of his property rights. The decree of the district court is therefore affirmed.