Droegmiller v. Olson , 241 Iowa 456 ( 1949 )

I respectfully dissent. The county highway lies between the dominant (north) and servient (south) land. The story of this case starts with the county's construction of a dike (about 1937) on the south side of the highway, to divert all of the water that flowed under the highway bridge into its south roadside ditch. There had been a bridge over or a culvert under this highway at this place for about forty years to carry the water from the dominant land to the servient land. It is admitted the dike was not constructed to save the highway from damage — as indeed it could not since the diversion was after the water flowed under the highway — and it is further admitted that the bridge channel was ample to carry all of the water flowing therein in 1937.

During the years since 1937 the bridge channel and the south highway ditch became silted up. It would not take an engineer to foresee that this would be the result when the water that once flowed south is turned at right angles after it leaves the bridge channel and forced to flow east. There is not much evidence that the bridge channel ever carried a great flow of water. There is no evidence that the water that flowed from the bridge onto the Streck land before the county dike was installed ever formed a swale or ditch on Streck's land. For a while the county utilized the north highway roadside ditch to carry part of the water that would no longer flow in the silted bridge channel, but when that too became silted, sending the water back on plaintiff's land, plaintiff brought this suit to compel the county to clean out the ditches and bridge channel and remove the dike it built in 1937. The relief given was an order to clean out the north ditch and defendant appeals and plaintiff also appeals and argues he was entitled to more relief; that, "the board of supervisors has no right to maintain the dike along the south side of the road ditch * * *."

The county's defense to plaintiff's action to clean out its ditches or remove its dike was that more than two years prior to its constructing this dike the plaintiff had diverted some water into the bridge channel that would not have gone there in a state of nature; that this diversion was accomplished by a dike on plaintiff's land. Plaintiff denies the construction of this dike on his land, saying he was merely cleaning out the channel. Mr. Streck testified that plaintiff had been diverting water to this bridge ever since plaintiff owned the farm (shown to be in 1932) but that he made no complaint to plaintiff because of the alleged diversion, though he did complain to the county authorities. He said he told the authorities: "they should favor [him] a little bit." To me this is no defense at all. The county engineer testified he knew all about this alleged diking on plaintiff's land before the county constructed their dike in 1937. The case is quite unusual (seldom do we find a county diverting water into roadside ditches) but I fail to see how the county can claim a right to leave a dike and silted bridge channel to block the flow of water from dominant land, because the dominant owner, years before, diverted some water into the waterway that would not have gone there in a state of nature. There is no more water now than there was when the county built the dike — or for more than two years before the county built the dike. One would think the county would concede the granting of the relief plaintiff sought — removal of the county's dike — and be forever freed from further responsibility for this water. It had no duty to build it and under several of the cases relied upon in the majority opinion it has no duty to maintain it for the protection of Mr. Streck.

Hinkle v. Chicago, R.I. P. Ry. Co., 208 Iowa 1366, 227 N.W. 419, cited and quoted from in the majority opinion is not authority for the defendant. It holds the servient owner could not compel the removal of a culvert through a railroad fill lying between dominant and servient land — even though the fill without a culvert had existed for many years and the railroad had tried, unsuccessfully, to divert the water from the dominant land, down the right of way to a river. The case is no authority for defendant here. Rather it is authority for plaintiff. That is exactly the relief plaintiff argues he is entitled to on his appeal — removal of the dike constructed by the county that blocked the water from flowing from the dominant to the servient land.

The same can be said of King v. Chicago, B. Q. Ry. Co.,71 Iowa 696, 29 N.W. 406, which the majority deems "more persuasive" than the Hinkle case. Here again the suit is by the servient owner seeking to enjoin the railroad from making an opening in the embankment that lay between dominant and servient land, after the railroad had made an unsuccessful attempt to divert the water in a ditch along the track to a river. Again I say this case would be authority for granting the relief plaintiff seeks on his appeal. As applied to this case it would mean that Mr. Streck would have no right to enjoin the county from removing its dike and some authority that he could not complain if the flow had been augmented by the dominant owner during the time the waterway had been obstructed by the dike. Section 309.67, Code, 1946, charges the county with the duty to keep all bridges open and free from obstruction. A bridge is not open and free from obstruction when it has been silted up and a dike at the downstream end prevents the free flow of water in a natural waterway.

But it is apparent the county does not want to remove its dike and end its liability. It wants to keep its dike in order to protect the south owner — the dike that blocks a natural waterway — but, because its dike caused silting in the bridge channel and roadside ditches where it diverted the water, the county now wants to take less water than it took when the dike was constructed. I do not think we need to consider whether this increased flow would cause substantial damage to Mr. Streck if the dike were removed. If it would, perhaps he could maintain an action against plaintiff. The point is the increased flow would not and did not cause any damage to the county. In fact as to the county one cannot say there was any increased flow. Under Mr. Streck's testimony the flow was the same for more than two years before the county obligingly built the dike as a "favor" to him and took all of the water.

The majority feels Brightman v. Hetzel, 183 Iowa 385, 167 N.W. 89, is "strikingly similar" to the instant case and good authority for the county. As I read the case it merely holds a landowner cannot divert water into a roadside ditch, then compel the county, after the lapse of twenty years, when the road is becoming impassable because of flooding, to maintain the ditch on the theory that it is part of a natural watercourse. That is not this case. Plaintiff diverted no water into the roadside ditch. The county diverted the water, after it came through the bridge, into its roadside ditch. The case is decided on the ground that a prescriptive right cannot be gained against the public. I agree with that holding but I do not think the case is applicable. Mr. Streck is not a party to this suit and perhaps one should not discuss his rights, but the above case and other authorities could be cited in support of an argument that he would have no right to compel the county to maintain the dike, which admittedly is for the sole purpose of guarding his servient land from water flowing under the bridge from the dominant land. Plaintiff could not claim any prescriptive right, for in 1937 he claimed no right to turn the water into the roadside ditch. There was just nothing he could do about the water after it left his land, so long as it was not thrown back on his land. Logsdon v. Anderson, 239 Iowa 585,30 N.W.2d 787. This case is much like the Logsdon case with the county in the position of the defendant in that case.

There is a theory on which I think the trial court can be sustained. It is sometimes called the doctrine of dedication and substitution and it does not rest upon agreement or prescription. 56 Am. Jur., Waters, section 15. It rests upon the right of riparian owners to have an artificial watercourse, which is apparently permanent, remain permanent, or upon the injustice of ordering a restoration to the old channel when the riparian owners along the old channel have been induced by apparent permanency to rely upon the continued existence of the new. This doctrine of dedication and substitution is well-expressed in Cloyes v. Middlebury Electric Co., 80 Vt. 109, 123, 66 A. 1039, 1044, 11. L.R.A., N.S., 693, 699, where the court stated:

"The artificial conditions created in the creek at Middlebury became the natural conditions — not prescriptively, nor by lapse of time, nor by grant contained in the contract, nor by force of the contract, as such, at all; but by force of the circumstances under which they were created — by dedication and substitution. The contract (which gained nothing by being recorded, since it was not entitled to record) affords evidence of the intention to make the changes permanent — a dedication for all time. The right of the then riparian owners to have the new conditions continue attached at once upon the completion of the work."

See also 56 Am. Jur., Waters, section 15, and Whipple v. Nelson, 143 Neb. 286, 9 N.W.2d 288. A case somewhat in point on the facts is Miller v. Perkins, 204 Iowa 782, 216 N.W. 27. In that case there was a railroad track, constructed on a fill, between the dominant tract and the servient tract. The railroad built a culvert under its tracks and the servient owner obtained permission from the railroad to construct a dam and ditch on the railroad's right of way to a swale some distance east of the culvert. In time this ditch silted and the dam caused the culvert to fill so the water backed up on the dominant owner's land. We held the servient owner must maintain the artificial ditch it had constructed on the railroad's right of way so that the water would not back up on the dominant owner's land.

The doctrine is based on the theory that it is better to hold the creator of the artificial and seemingly permanent condition to performance of the apparent dedication, which was substituted for the state-of-nature plan of drainage. In short, it is equity to continue the artificial rather than restore the natural. I see no reason in principle why such a rule should not be invoked against a county. As stated it is not based on prescription or agreement. It is based on apparent permanency. Is a county harmed when it constructs an apparently permanent channel and takes water away so it will not again trouble landowners, if it is called upon to maintain that channel? To hold otherwise would mean that it could take the water as long as certain county officials desired to favor abutting landowners and, after the abutting landowners had been induced to believe the improvement permanent, it could abandon the project to the landowners' damage.

I will admit this theory is not argued but it is one that I think is applicable here and one that will sustain the trial court. Also there is no evidence that Mr. Streck, the south owner, changed his position after the county took all of the water — though I think we can assume he was much benefited by the county's action. There is evidence from which we can assume plaintiff, relying upon the permanency of the county's ditch, was able to farm the west part of his farm. The dike which the county constructed as a "favor" to Mr. Streck took many months to build with WPA labor and I think it can be said to be apparently permanent.

This is an equity case, triable de novo here. We get at best an unclear picture of the entire situation. The trial court, with consent of counsel, had the additional advantage of viewing the land involved. The majority leaves the plaintiff in the dilemma of a dominant owner with no right to compel the maintenance of the flow of water off of his land that has existed for ten or twelve years, or perhaps longer. He lost this right under the majority reasoning, not because he turned any water into the highway ditches that are now blocked with silt, but because the county turned the water into the highway ditches. The majority says the plaintiff can gain no prescriptive right against the county to compel it to maintain these ditches. The majority also says the county can maintain the dike at the end of the bridge — admittedly there for the sole purpose of protecting the south landowner. I think equity and fairness should demand that the county be compelled to maintain its ditches or at least one of them to carry the flow of water its dike blocked or be compelled to remove the dike. The county does not want to remove its dike and end its liability so I think the trial court's order to clean out the north ditch should be affirmed.