Durst v. Puffett

Gaynor, C. J. wÍmbcoübsbs : .?¿nct!ouV ov?-’ cIghcg This action is to enjoin the defendant from maintaining an obstruction in what is claimed to be a creek or natural watercourse, whereby the natural flow of the water in the creek is interrupted and the waters diverted from their natural course, to the prejudice of the plaintiff. • The plaintiff’s and the defendant’s land joins. Plaintiff’s land is on the west. They are divided by a fence running north and south, about one-half mile in length. The plaintiff’s land is in Section 18 and in the west half of Section 17. The dividing fence runs through the center of 17. — 15 — Defendant’s laiid is to the east of this fence, and therefore in 17. The creek in question, we may assume for the purposes of this case, is a natural watercourse. It starts north and east of plaintiff’s land, but through plaintiff’s land runs practically due west to the fence; thence over defendant’s land across a highway to a ditch on defendant’s .land, by which the water from the creek is carried still farther west and emptied into what is known as Oregon Creek; thence carried by Oregon Creek in a northwesterly direction to the Little Sioux River. The plaintiff claims that the appellant obstructed the flow of the water through this creek at the division line, by placing rocks in the bottom of the creek at that point, the effect of which, plaintiff says, is to obstruct the free flow of the water and cause it to spread out and over plaintiff’s land to his damage. The defendant claims, however, that he has not obstructed the natural flow of the water in this creek, and says that whatever damage the plaintiff has sustained has been caused by the natural overflow of water from streams and other causes. This is practically a fact case. Much learning has been-expended in effort to make it appear that, under the law of this state, if surface water from the dominant estate uniformly and habitually flows over a given course, having-reasonable limits in width, onto the servient estate, the owner of the dominant estate has no right to cause this surface water to be discharged upon the servient estate in any other way, or in greater quantities, than it would so flow in the course of nature. Further, that a natural watercourse is not necessarily a channel with banks, but it may be such in contemplation of laAv, even though there are no banks, if the water uniformly flows in a certain line within reasonable limits; that a watercourse is the natural line of flowage. We are further told that it is not necessary that this watercourse be the result of natural causes; that it — 16 — may be aided by the hand of man, and if, so aided, it thereafter becomes a living, floAving stream of Avater for the requisite length of time, it becomes a Avatercourse, and equity will interfere to restrain diversion of the Avater. These contentions haA^e their support in Pascal v. Donahue, 170 Iowa 315; Jontz v. Northup, 157 Iowa 6; Bramley v. Jordan, 153 Iowa 295; and Falcon v. Boyer, 157 Iowa 745. So Ave have abundant authority for saying that the stream or creek or watercourse in controversy is a Avatercourse, and AA7e Avill so treat it in the discussion of this case. We have authority for further saying, on the assumption that this is a natural Avatercourse, that equity Avill enjoin the continued diversion of the Avaters from this creek from its natural course on plaintiff’s land. This brings us to a consideration of the facts as disclosed in this record. While the record discloses that plaintiff oavjis about 520 acres of land in Sections 17 and 18, Avest of the line running north and south through the center of Section 17, and defendant’s land is all east of this line in 17, we have only to deal Avith so much of the land of either of these parties as lies in Section 17. The plaintiff oaviis the east half of the northwest quarter, and the southwest quarter of the northwest quarter, and the nortlnvest quarter of the soutlrwest quarter, of Section 17. The defendant owns all of the northeast quarter of 17. The obstruction complained of is where the creek crosses the fence line betAveen the land of the plaintiff and the land of the defendant, just north of the center of Section 17. There is a road running in a northeasterly andsoutliAvesterly direction across the southeast quarter of the northwest quarter of 17, cutting off about 2 acres in the southeast corner of this 40. The general character of the land that lies to the east and south of this highway is partly farm land, but mostly pasture. The southeast quarter — 17 — of the northwest quarter of Section 17 is rough. This is the 40 through which the highway runs, and there is quite a fall from the east side of this 40 to the west side towards the lateral ditch that serves ás an extension westward of the creek. There is a bridge on this highway over this creek or lateral. This lateral was constructed about the year 1913, and ivas constructed to receive the waters from the creek coming from the defendant’s land. The lateral continues west until it empties into what is known as Camp, or Oregon, Lake. This lateral is a part of a drainage system regularly established. The creek referred to starts at the top of the hill, about a mile and a quarter back of plaintiff’s land. There are other little creeks or draws that empty into this creek. At the point where the creek enters the Durst land, it is about 10 feet deep. Going eastward along this creek from the fence line that divides the land, the ditch has high banks, perhaj)s 4 or 5 feet. As this creek approaches the place where it is claimed this dam is constructed, it becomes shallow. At this point, defendant was accustomed to cross the creek, having land on both sides of the creek, and, as the bottom of the creek was soft, rendering it difficult to pass through with a team, he placed rocks on the bottom to make a solid base on which to cross from one side of the creek to the other. This is what the plaintiff denominates a dam, which, he claims, obstructs the flow of the water. The banks at this point seem to have been lower than at any other point on the creek line, and for this reason it was selected by the defendant as a place to cross from one side of tire creek to the other to cultivate his land. The creek just west of the fence on plaintiff’s land, west of where it is claimed this obstruction is, has well-defined banks, and receives a large amount of water from the hills. The filling in the creek that causes overflows on plaintiff’s land, so far as we can gather from this record, which — 18 — is not entirely clear, is west of this stone crossing, and on plaintiff’s land. It seems to be assumed by the plaintiff that all the debris and all the filling that are found and described by the witnesses, west of this stone crossing, are due to the stone crossing; but there is nothing in the record that sustains any such assumption. It is also claimed that willows have grown up in this creek west of this stone crossing on plaintiff’s land, and that the growth of these willows is due-to this stone crossing. The evidence shows that the xvater coming cloxvn the creek from the east passes over this rock bottom quite as readily as it Avould Avithout rocks. One Avitness for the plaintiff testifies that the Avatei; passes over these rocks pretty fast. This same Avitness says that trees and things have grown up and the channel is in pretty bad shape AA'est of this stone crossing on plaintiff’s land clear down to the bridge on the higliAvay. It appears that, immediately Avest of this so-called dam, there is a drop of about (> feet to the bottom of the creek; that the water going over the stone crossing has Avashed out the creek beloAV to the west. It appears that vegetation and debris of various kinds were found by some of the witnesses west of this stone crossing on plaintiff’s land. It is assumed that all this xxms the result of this «tone crossing, AAhile the evidence, considered fyom any fair standpoint, shows that the crossing had nothing to do xx-ith it; that it xvas the result of ox-erfloAvs and xvasliings from the surrounding country, and not from any xvater diverted from its natural flowage in this creek. The whole controversy on plaintiff’s part seems to rest on the assumption that this stone crossing is the cause of xvhat appears to us to be due to conditions existing on his oxvn land, to xvhich it is not shown that the stone crossing has contributed in the least. There is no evidence that this stone crossing has diverted any xAUiter' from the natural channel, or that any of the conditions found west of the — 19 — stone crossing can be attributed to its existence. Surely not the willows that are growing in the creek or along the banks of the creek; surely not the logs and driftwood; for if it reached the creek, it would haré been carried just tiie same without the stone crossing as with it, if carried by the creek. In fact, there is no evidence that any of the conditions found west of this stone crossing on plaintiff’s land are produced or brought about or even contributed to by the existence of this stone crossing. Nor does it appear that plaintiff has suffered or is likely to suffer any damage by the continued existence of this stone crossing. No witness pretends to say that any water has ever been thrown out of the channel of this creek by the reason of this stone .crossing, onto plaintiff’s land. We find no substantial basis in the record for the granting of the writ in this case, and the case is therefore —Reversed. Ladd, Evans, and Salinger, JJ., concur.