Thill v. Mangers ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 22-0197
Filed December 21, 2022
BETTY J. THILL, as Trustee of the BETTY J. THILL TRUST DATED
AUGUST 16, 2018 and BETTY J. THILL, Individually,
Third-Party Plaintiffs-Appellees/Cross-Appellants,
vs.
DALE MANGERS,
Third-Party Defendant-Appellant/Cross-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County,
John J. Bauercamper, Judge.
Neighboring landowners appeal the dismissal of their trespass and
nuisance claims in this drainage dispute. AFFIRMED ON BOTH APPEALS.
Darin S. Harmon and Jeremy N. Gallagher of Kintzinger, Harmon &
Konrardy, P.L.C., Dubuque, for appellant/cross-appellee.
Todd J. Locher of Locher & Davis PLC, Farley, for appellees/cross-
appellants.
Considered by Ahlers, P.J., and Badding and Chicchelly, JJ.
2
BADDING, Judge.
“[I]f your neighbor builds a berm, you build a higher berm.” So says Betty
Thill, who has been engaged in an escalating battle of berms with her neighbor,
Dale Mangers, for the past fifty years, which has spilled over to their other
neighbors, Edward and Susan Walz. In a lawsuit initiated by the Walzes, Thill1
and Mangers each asserted nuisance and trespass claims against the other. The
district court dismissed those claims, finding “a combination of many factors is
responsible for the water drainage problems” in the neighborhood. Mangers
appeals, and Thill cross-appeals, from that ruling.
I. Background Facts and Proceedings
There have not been many beautiful days in this neighborhood.2 Betty Thill,
Dale Mangers, and Edward and Susan Walz own neighboring properties in a rural
area near Dubuque. The Walz property is separated from the Thill and Mangers
properties by a railroad that runs diagonally northwest to southeast—with the Thill
property directly across the railroad tracks from the Walz property. The Walz
property is northeast of the railroad, and the Thill and Mangers properties are
southwest. The Thill and Mangers properties are next to each other on the other
side of the railroad tracks, separated by a gravel subdivision-type road named
Johnson Lane. This gravel road is not maintained by the county, but it is repaired
by the neighbors who use it when flooding washes out the road. Both Thill and the
Walz family use this road to access their homes.
1 Thill was sued individually and as trustee of the Betty J. Thill Trust.
2 Adapted from “It’s a Beautiful Day in the Neighborhood,” written by Fred Rogers—
the theme song to the classic television show, Mr. Rogers’ Neighborhood.
3
The Mangers property is at a higher elevation than the Thill property. On
the west and southwest side of their properties, a county road called Massey
Station Road runs roughly parallel to the railroad tracks. Behind this road, there
are about twenty-five acres of woodland area, which is at a higher elevation than
the Mangers property. Water naturally flows downhill from the woodland area
toward the Thill and Mangers properties and Johnson Lane.
To accommodate the flow of water, in the 1950s or 60s, Dubuque County
installed a forty-two-inch diameter culvert that crosses under Massey Station Road
near the Mangers property. Around the same time, a previous landowner in the
area raised the grade of Johnson Lane to create better sight distance along
Massey Station Road and installed two corrugated metal pipe culverts under the
lane. After the installation, the water would go into the Massey Station culvert,
4
cross the corner of the Mangers property, and proceed through the Johnson Lane
culverts onto the Thill property. When this drainage system was first set up, the
Thill property was undeveloped land.
That changed in 1972 when a spec home was built on the Thill property.
Mangers remembered that seventeen loads of material were trucked in to build the
home up higher than the surrounding ground. It was situated “right in the middle”
of what would have historically been the natural flow of water from the Mangers
property. This resulted in splitting the path of the water, with some going between
Thill’s home and Massey Station Road and the rest along Johnson Lane. Thill and
her late husband bought the spec home in 1976. Thill’s husband died in 2018, but
Thill still resides there.
After a year of living in her home, Thill approached Mangers and told him
that “she didn’t think the water should be on her side” of Johnson Lane. Starting
around 1995, Thill and her late husband began blocking the culverts under
Johnson Road. They would place items like a bucket, metal stakes, rocks, and
debris in front of the culverts. Thill’s husband even put a porcelain tub in the
culvert, suggesting to Mangers that they “would take half of the water if [Mangers]
would take half the water.” Thill testified it was their goal to make one of the
culverts non-functional and divert the water over to Mangers’ side. But Thill said
that “Mangers wouldn’t take the water. He just kept shoving it all to us.”
Mangers began to have problems with ponding, or “backing up,” of water
onto his property, which caused his ground to fill with silt and level off. He
consulted with an attorney in 1995, who took pictures of the Massey and Johnson
Lane culverts as they were then. But Mangers did not pursue legal action against
5
Thill because he did not have the funds to do so. Instead, he engaged in self-help
measures to restore the natural flow of water. Sometime between 2006 and 2011,
Mangers built an earthen berm and timber plank barricade along the south and
east of his property. His intent was to restore what had once been a depression
or swale, before it was leveled off by silt and ponding water, and direct the water
back toward the culverts and Thill’s property.
Thill testified that this berm caused substantially more water to flow onto her
property. During significant rainfalls, Thill would “sometimes have as high as eight,
ten inches of muck in front of [her] two garages.” In the flood of 2008, her
basement flooded with six inches of water. That same event washed out Johnson
Lane enough to expose one of the culverts. The culvert had disintegrated so much
over the years that there was a hole at the top of it. Thill’s husband and a neighbor
filled the culvert with rock so the neighbor could cross the road to get to work. Thill,
who claims to own Johnson Lane, never replaced that culvert. And over the next
decade, she continued to place rocks and other debris in front of the remaining
culvert to divert water from her property. In doing so, the opening to the culvert
eventually became buried and covered by “grass and everything growing on the
downstream end of it.”
In March 2020, Edward and Susan Walz brought a petition against Thill
claiming her actions in “blocking the culvert substantially altered the flow of water
from [her] dominant estate over and across [the Walzes’] servient estate, as well
as on Johnson Lane, the only point of access to and from the [Walz] property.”
They sought damages and injunctive relief requiring Thill to stop blocking the
culvert and return it to its original condition.
6
Thill answered the petition and filed a third-party petition against Dale
Mangers for trespass, nuisance, and injunctive relief. Thill claimed Mangers built
structures on his property that “concentrate[d] and diverte[d] water” from his
property onto hers “in an unnatural way.” She sought compensatory and punitive
damages, along with an order requiring Mangers to “restore the Thill Property to
the pre-existing condition prior to the trespass and nuisance [he] caused.” In his
answer to the third-party petition, Mangers asserted trespass and nuisance
counterclaims against Thill, claiming she “constructed barriers on her property
which both dams and diverts water from his property back on to Mangers’ property,
as well as down the road and washes out an access road used by many
neighbors,” including the Walzes.
Following a bench trial, the district court issued a concise ruling that
dismissed all of the claims before it “because the evidence discloses that a
combination of many factors is responsible for the water drainage problems.”
Mangers appeals, and Thill cross-appeals; the Walz family does not appeal. For
his appeal, Mangers claims the district court “erred by not ordering Thill to repair
the drainage problems she created” with her “systematic blocking of the Johnson
Lane culverts,” which diverted the natural flow of water and “cast it back upon” his
property. On cross-appeal, Thill only challenges the court’s dismissal of her
nuisance claim, arguing she met her burden to prove that the berm and barricade
Mangers built “redirected water to the Thill property.” As she did in district court,
Thill seeks injunctive relief, special and punitive damages, and attorney fees.
7
II. Standard of Review
Because this case was tried in equity, our review is de novo. Iowa R. App.
P. 6.907; Perkins v. Madison Cnty. Livestock & Fair Ass’n, 613 N.W.2d 264, 267
(Iowa 2000).
III. Analysis
At the heart of private nuisance claims3 like these “is the concept that
property owners must not unreasonably disturb or interfere with their neighbor’s
reasonable enjoyment and use of their property.” Sojka v. Breck,
No. 12-1019, 2013 WL 1453241, at *3 (Iowa Ct. App. Apr. 10, 2013); accord Iowa
Code § 657.1(1) (2020) (defining a “nuisance” in part as “an obstruction to the free
use of property, so as essentially to interfere unreasonably with the comfortable
enjoyment of life or property”). One type of nuisance is the unlawful diversion of
water “from its natural course or state, to the injury or prejudice of others.” Iowa
Code § 657.2(4).
As the above suggests, Iowa follows the “natural flow” doctrine:
The general rule is that the dominant owner is entitled to drain
surface water in a natural watercourse from his land over the servient
owner’s land and if any damage results the servient owner is without
remedy. This rule, however, is subject to qualification. We have
many times held that if the volume of water is substantially increased
or if the manner or method of drainage is substantially changed and
actual damage results, the servient owner is entitled to relief.
3 We focus our analysis on the parties’ competing nuisance claims, although they
both also asserted claims for trespass against the other. We do so because
(1) Thill’s appeal is confined to challenging the dismissal of her nuisance claim and
(2) Mangers’ appeal mentions both claims but does not provide a separate analysis
for either, instead relying on the nuisance drainage law we have set forth in our
analysis. See Hyler v. Garner, 548 N.W.2d 864, 870 (Iowa 1996) (confining the
court’s consideration to issues raised on appeal); Richardson v. Neppl, 182
N.W.2d 384, 390 (Iowa 1970) (“A proposition neither assigned nor argued presents
no question and need not be considered by us on review.”).
8
O’Tool v. Hathaway, 461 N.W.2d 161, 163 (Iowa 1990) (citation omitted). The
servient landowner, however, “may not interrupt or prevent the water’s natural flow
to the detriment of the dominant landowner.” Sojka, 2013 WL 1453241, at *4.
Because the Mangers property sits at a higher elevation than the Thill
property, the parties agree he is the dominant estate owner. See Maisel v.
Gelhaus, 416 N.W.2d 81, 84 (Iowa Ct. App. 1987) (“With regard to ordinary surface
waters, the relative elevation of the respective tracts determines which is the
dominant and which is the servient estate.”). From there, they each claim the other
has interfered with the natural flow of surface water across the Mangers property.
So the question is, how has surface water naturally flowed in the neighborhood?
See Ditch v. Hess, 212 N.W.2d 442, 448 (Iowa 1973) (considering historical flow
of surface water in examining drainage dispute).
Turning to Thill’s cross-appeal first, she argues that Mangers violated his
obligations as a dominant estate owner with his berm and barricade, which she
contends “concentrated the flow of the storm water that discharged from the 42
inch culvert and diverted the storm water onto the Thill property further south
(uphill) on the Thill property than it flowed naturally.”
In support of this argument, Thill relies on testimony from her expert
witness, Dennis Waugh. He concluded the original drainage path of the water from
the Massey Station culvert was over Johnson Lane to the northeast of Thill’s
driveway. That flow was changed, according to Waugh, when Mangers installed
his berm and barricade, which “diverted the outflow from the Massey Station
culvert directly to culvert pipes that had been previously placed under Johnson
9
Lane” and across Thill’s driveway. Mangers, however, had his own expert
witness—Patrick Norton—who disagreed with many of Waugh’s conclusions. On
our de novo review of the record, we find Norton’s conclusions should be afforded
more weight. See In re Marriage of Rosenfeld, 524 N.W.2d 212, 215 (Iowa Ct.
App. 1994) (giving expert testimony “the weight we consider it deserves after
considering, among other things, the expert’s education, experience, familiarity
with the case, reasons given for the opinion, and interest, if any, in the case”); see
also Sojka, 2013 WL 1453241, at *5–6 (discounting expert testimony that “rested
on incomplete or unreliable information”).
Waugh testified that his report focused on the current condition of the
neighborhood because he “approached this as a design project in which case
nothing’s ever happened, nobody’s there to interview. Okay, what evidence do we
have to make decisions where the water’s going to go?” So in reaching his
conclusions, Waugh surveyed the properties and considered elevation data from
the Iowa Department of Natural Resources’ website collected in 2009—after the
Johnson Lane culverts were blocked and after he believed the berm had been
installed. He also talked to Thill for some historical background and considered
photographs she provided to him. But like the elevation data, those photographs
were all taken after the culverts were blocked.
In contrast, Norton considered his task to “make an opinion as to the source
of the water, where the water was going, where it always had gone, what had
happened in the middle and, therefore, here today.” To do that, he reviewed
historical aerial photographs dating back to the 1930s, topographic maps from the
1950s showing historic drainage patterns, and photographs from Mangers taken
10
in 1995—before the berm was built but after the culverts were obstructed. He also
conducted a site visit, reviewed Waugh’s report, and talked with Mangers and
another neighbor. From that historical review, Norton concluded
that historically water flowed from the property on the opposite side
of Massey Station . . . flowed through a culvert underneath Massey
Station Road, crossed the corner of Mr. Mangers’ property through
some culverts that had been systematically blocked over the course
of many years.
The photographs from 1995, which Waugh did not consider in his report,
were key to Norton’s conclusion. Those photographs show the outlet of the
Massey Station culvert on Mangers’ property with a depression area sloping
toward Thill’s property and the inlets to the Johnson Lane culverts, which were
visible in the photographs. Norton testified the 1995 photographs prove that “the
natural flow of water [went] directly from the Massey Station culvert to the Johnson
Lane culverts.” As Norton logically questioned at trial, “Why else would they have
been blocked? Why would [someone] block a culvert . . . that doesn’t have water
flowing through it?” When Waugh viewed those photographs for the first time at
trial, he too agreed they showed that the natural flow of water in a normal rain
event would go to the Johnson Lane culverts. Yet he maintained based on his
survey calculations that the culverts were installed at too high of an elevation to
have ever been functional. But Waugh, according to Norton, failed to consider
years of erosion that could have taken place on the uphill side, which “would lower
the ground making the culvert stick up in the air,” and sediment deposits on the
downhill side.
In the end, Norton concluded that Thill’s blocking of the Johnson Lane
culverts “would have began all of the problems. . . . [O]nce the culverts were
11
blocked, the water that formerly flowed through those culverts was then forced to
flow along Johnson Lane and until it reached a . . . point where it would flow over.”
See Moody v. Van Wechel, 402 N.W.2d 752, 757 (Iowa 1987) (“Water from a
dominant estate must be allowed to flow in its natural course onto a servient estate.
The flow may not be diverted by obstructions erected or caused by either estate
holder.”). He believed the berm and barricade Mangers built was an attempt to
return to that natural flow pattern that Thill interrupted.
On our de novo review of the record, we agree with the district court that
Thill did not prove that Mangers substantially changed the method or manner of
the natural water flow. See Garrison v. New Fashion Pork LLP, 977 N.W.2d 67, 90
(Iowa 2022). As a result, her nuisance claim fails, as do her requests for injunctive
relief, special and punitive damages, and attorney fees.
This leaves us with Mangers’ appeal, which is limited to the claim that the
district court “erred by not ordering Thill to repair the drainage problems she
created.” Thill argues this claim was not preserved because Mangers only sought
damages, not injunctive relief, for his trespass and nuisance counterclaims. We
agree.
Mangers’ counterclaim pled two counts against Thill—one for trespass and
one for nuisance. For each, Mangers simply asked for judgment against Thill “for
property damage and diverting and damming water,” without a general equitable
prayer for relief. Cf. Jorge Constr. Co. v. Weigel Excavating & Grading Co., 343
N.W.2d 439, 441 (Iowa 1984) (noting a prayer for general equitable relief “often
will justify a court in granting relief beyond what is asked in specific prayers”). But
by trial, that requested relief had evolved into one for an order requiring Thill “to
12
restore the culverts and restore the natural flow of water as it would otherwise have
been, namely, flowing across Dale Mangers’ property, through the culverts under
Johnson Lane and across Betty Thill’s property.” Mangers made this request for
injunctive relief during his testimony and in a post-trial brief.
Thill did not object to Mangers’ change in remedy at trial, which would
normally allow us to treat his request for injunctive relief as if it had been raised in
the pleadings. See Iowa R. Civ. P. 1.457 (“When issues not raised by the
pleadings are tried by express or implied consent of the parties, they shall be
treated in all respects as if they had been raised in the pleadings.”); Lee v.
State, 844 N.W.2d 668, 679–80 (Iowa 2014) (“[P]arties may consent to try issues
beyond the scope of the pleadings.”). The problem, however, is that the district
court did not rule on Mangers’ request for injunctive relief. See Est. of Cawiezell
v. Coronelli, 958 N.W.2d 842, 848 (Iowa 2021) (“In order for error to be preserved,
the issue must be both raised and decided by the district court.” (emphasis
added)). Instead, its decision was limited to the counterclaims Mangers pled—
trespass and nuisance—for which he only sought damages. Cf. Lee, 844 N.W.2d
at 680 (considering plaintiff’s request for reinstatement to employment she had
been terminated from when the parties tried the issue by consent and the district
court ordered her reinstatement). We recognize the court rejected the Walzes’
request for injunctive relief against Thill, but they did not appeal that ruling. And
Mangers cannot do so in their place. See Kintzel v. Wheatland Mut. Ins. Ass’n, 203
N.W.2d 799, 803 (Iowa 1973) (noting we cannot consider errors affecting a non-
appealing party).
13
For these reasons, we conclude error was not preserved on Mangers’
request for injunctive relief. Because Mangers’ appeal was limited to that issue,
we affirm the dismissal of his trespass and nuisance claims.
IV. Conclusion
On our de novo review of the record, we find that Thill did not prove that
Mangers substantially changed the method or manner of the natural water flow.
So her nuisance claim fails, as do her requests for injunctive relief, special and
punitive damages, and attorney fees. As for Mangers’ trespass and nuisance
claims, we conclude he failed to preserve error on his request for injunctive relief—
the sole issue he raises on appeal. The district court’s ruling dismissing the parties’
claims is accordingly affirmed.
AFFIRMED ON BOTH APPEALS.