Brown v. Honeyfield

SheewiN, J.— The plaintiffs, G. W. Brown and Isabella Fitkin, are the owners of separate pieces of land lying north and west of the appellant’s land. The plaintiff, George B. Haughey, is a tenant occupying land west of the Brown and Fitkin land. B. B. Stewart is the owner of land directly south of the Fitkin land and west of the appellant’s land. About 1860 a ditch was dug from Brown’s west forty southeasterly through the Fitkin land, thence across the east and west highway between that land and the Stewart land, then through the Stewart land to and across the township line road onto the appellant’s land, and thence south through his land to a creek. About 1893 the course of the ditch was changed from the Stewart land to the highways north and east thereof. Whether this change was made with the consent of Witmore, the then owner of the appellant’s land, or at the instance of the appellees’ grantors, does not certainly appear; but, as we view the case from the record before us, it is not a controlling question. The appellant bought the land in question in June, 1899, and moved onto it in the fall of 1900. As we understand the record, the ditch was originally dug to drain a large depression or basin located on the lands of Brown and Fitkin as well as other land, and it was dug in a natural water course, at least a part of the way, and in a natural depression on the appellant’s land, which became a water course in times of high water. The original ditch was from four to five feet deep and about five feet wide at the top. It crossed the appellant’s land between his house and barn, and the several owners of the land have maintained bridges over it since it was dug. The terms of the original contract for the construction of the ditch are not shown because of the death of the parties, but it is conclusively shown that the plaintiffs’ grantors and predecessors in title expended money and time in opening said ditch originally, and that they and their grantors and predecessors in title have expended time and money in cleaning it out. [417] 1. Drainage: ac-quisitionof fight: license. [416] It is well settled in this state that the permanent right [417] of drainage through the land of another may be acquired where a ditch therefor has been constructed jointly by the owners under an oral agreement for its con- . .. ,. -, struetion, and where time or money has been • expended in its construction and maintenance in reliance upon such agreement. And a ditch so constructed cannot be destroyed, or the right thereto be denied or annulled without the consent of all parties to the agreement. The assent of appellant’s predecessors in title to the construction of the ditch was in the nature of a license, which, having been accepted and acted upon, cannot be disregarded. Neuhring v. Schmidt, 130 Iowa, 404; Dorr v. Simmerson, 127 Iowa, 551; Hansen v. Farmers’ Co-op. Creamery Co., 106 Iowa, 170; Vannest v. Fleming, 79 Iowa, 644. 2. Same: ease-of right. That the ditch in question was dug at the joint expense of the owners of the land described in the petition, and for the purpose of draining their land, does not admit of doubt. Its size and the fact that it was maintained unobstructed for over forty years by all of the parties in interest is the strongest kind of evidence in support of the claim that it was the intention of the parties to make it,a permanent improvement and permanent way for the discharge of water from the plaintiffs’ lands. And, while it is true that no witness is able to testify that it was the express agreement between the parties that it should be an irrevocable right or license, the facts and circumstances proven can be reconciled with no other thought or intention. 3. drains: main-authorized acts estoppel.' If the right to this way became permanent by reason of the agreement and the conduct of the parties, it created an easement that passed with the grant of the land itself, and it was not necessary to specifically mention the same m the deeds ox conveyance, The record does show that the action of the water and the travel of stock over the ditch tended to partly obstruct it at times, but it is also shown, as we have already said, that it was cleaned out from time to time so that it [418] would serve the purpose for which it was dug. It was never entirely closed or obstructed on the appellant’s land until shortly before this action was commenced. The action of the county or township officers in throwing an additional quantity of water into the ditch can make no difference with the plaintiffs’ right, for it is not shown that they were in any way responsible therefore. The plaintiff, Isabella Bitkin, did not authorize her husband to represent her in any action he took relative to the ditch, and she clearly cannot be estopped thereby. The record fails to show that the additional ditches claimed to have been dug by the plaintiffs increased the flow of water through the ditch in question to the detriment of the appellant. 4. Same: change drainage!0 Changing the' course of a ditch will not extinguish an easement unless it appears that the quantity of water thrown Upon the Servient estate will be unduly increased to the damage of such estate. Neuhring v. Schmidt, supra; Hull v. Harker, 130 Iowa, 193. 6 SAME-equitable relief. The appellee Haughey as tenant is entitled to the benefit of the easement running with the land occupied by him and incident to his lease, and a court of equity has jurisdiction “Strain any violation of such right. Morrison v. Railway Co., 117 Iowa, 590; 1 Taylor’s Landlord & Tenant (8th Ed.), section 212. 6. Same: bona notice. There is no merit in the appellant’s claim that he purchased without knowledge of the easement claimed by the plaintiffs. The ditch was there at the time, and it was in itself evidence of an easement. If the appellant failed to view the premises before buying, it was his fault, and not that of the plaintiffs. After he moved onto the land he recognized the ditch by helping the others clean it out, and by building a way over it to his barn and other out buildings. The appellees have done nothing, nor have they omitted to do anything upon which an estop-pel can be based.- [419] r. Same: removal tions: decree, Finally, it is said that the decree is “ uncertain, indefinite, and incomplete.” It orders the appellant to remove all obstructions “ that he has placed or caused to be placed in that portion of the ditch . . . upon his premises at' any time since June, 1903,” so as to leave it “ in the same condition as to depth and width as it was immediately after it was cleaned out with defendant’s assistance in the summer of 1903.” The appellant is certainly in no position to complain of this decree. His unauthorized act brought about the present condition, and all that he is required to do is to restore the ditch to its condition immediately before he acted. If there is uncertainty as to such condition, he alone is to blame for it. The judgment should be, and it is, affirmed.