Opinion
No. 5-205 / 04-0390
Filed May 11, 2005
Appeal from the Iowa District Court for Dallas County, Gregory A. Hulse, Judge.
Defendants appeal the district court's grant of an injunction requiring them to fill in a surface drain on their property. AFFIRMED.
David Repp of Dickinson, Mackaman, Tyler Hagen, P.C., Des Moines, for appellant.
Michael Ensley of Hanson, Bjork Russell, L.L.P., Des Moines, for appellee.
Considered by Huitink, P.J., and Mahan and Zimmer, JJ.
I. Background Facts Proceedings
William K. Wright and his son, William E. Wright, own farmland in rural Dallas County. Immediately to the east of the Wrights' land is farmland owned by Betty Mitchell, who is William K. Wright's sister. Mitchell's land is rented to Raymond Repp and Douglas Repp through their family farm corporations, Repp Farms, Inc. and Repp Enterprises, Inc.
We will refer to Raymond Repp, Douglas Repp, and their corporations together as the Repps.
The Mitchell land contains prairie potholes, which are depressions caused centuries ago by glaciers. After a rainstorm, the prairie potholes become ponds, and the standing water can kill or stunt crops planted in that area. The Mitchell land has been tiled, but the tiling is inadequate to drain the prairie potholes. The Mitchell land is at a greater elevation than the Wright land, and so water from the Mitchell land naturally drains toward the Wright land.
With Mitchell's approval, in 1998 and 1999 the Repps dug channels from the prairie potholes to increase the surface drainage. The channels lead from the prairie potholes toward the Wright land. Before, there would have to be about two feet of water in the ponds before it would spill out over the top of the depression, and now it only takes about six inches.
The Wrights filed suit against Mitchell and the Repps, relying upon Iowa Code section 468.621 (2001), which provides a landowner may not "increase the quantity of water or change the manner of discharge on the land of another." The Wrights sought a permanent injunction to require defendants "to restore the land to its natural condition so that the surface water drains in its natural course." The defendants presented the testimony of a civil engineer, Brent Johnson, who testified the defendants had not changed the natural flow of the surface water. However, Johnson stated the channels have increased the amount of water and rate of flow toward the Wright land. The Wrights did not present evidence of any current economic damages as a result of the changes in the surface water drainage.
The district court determined the Wrights were entitled to a permanent injunction. The court found that although no economic damages had occurred because of a drought period, there was "likely to be a substantial increase in water in the event of a greater-than-average rainfall." The court determined:
The Court further finds that Defendants should return the Mitchell property, as nearly as reasonably possible, to the same grade that existed prior to the surface drainage work performed in 1998 or 1999. Defendant should perform this work as soon as possible to alleviate further damage, but in any event, Defendants should have this work completed no later than December 1, 2004. The Defendants should be further enjoined from taking any further action which would cause additional surface drainage to be directed toward the Wright property.
The court denied the defendants' motion filed pursuant to Iowa Rule of Civil Procedure 1.904(2), although the court changed a statement that there had been a recent drought, to now state there had been "a relatively dry period, without any years of sustained heavy rainfall such as 1993." Defendants appeal.
II. Standard of Review
An action for injunctive relief is in equity. Owens v. Brownlie, 610 N.W.2d 860, 865 (Iowa 2000). Our review is de novo. Iowa R. App. P. 6.4. "In equity cases, especially when considering the credibility of witnesses, the court gives weight to the fact findings of the district court, but is not bound by them." Iowa R. App. P. 6.14(6)( g).
III. Merits
The Wrights rely upon section 468.621, which provides:
Owners of land may drain the land in the general course of natural drainage by constructing or reconstructing open or covered drains, discharging the drains in any natural watercourse or depression so the water will be carried into some other natural watercourse, and if the drainage is wholly upon the owner's land the owner is not liable in damages for the drainage unless it increases the quantity of water or changes the manner of discharge on the land of another.
The defendants ask us to read this section in conjunction with section 468.2(1), which states, "The drainage of surface waters from agricultural lands and other lands or the protection of such lands from overflow shall be presumed to be a public benefit and conducive to the public health, convenience, and welfare." See Hicks v. Franklin County Auditor, 514 N.W.2d 431, 435 (Iowa 1994).
In Iowa there is also a common law rule which provides:
There has been adopted and developed in this jurisdiction what may best be characterized as a modified civil law rule which recognizes a servitude of natural drainage as between adjoining lands. Under this concept a servient estate must accept surface waters which drain thereon from a dominant estate. On the other hand, no right exists to alter the natural system of drainage from a dominant estate in such manner as to substantially increase the servient estate burden.
Braverman v. Eicher, 238 N.W.2d 331, 334 (Iowa 1976). A servient owner is entitled to relief if the volume of water is substantially increased, or if the manner or method of drainage is substantially changed, and this results in actual damages. Grace Hodgson Trust v. McClannahan, 569 N.W.2d 397, 399 (Iowa Ct. App. 1997).
A party may seek injunctive relief against the wrongful alteration of the natural flow of water. Blink v. McNabb, 287 N.W.2d 596, 601 (Iowa 1980). The issuance of an injunction is a discretionary function of the court based on the traditional principles of equity and the special circumstances of the case. Worthington v. Kenkel, 684 N.W.2d 228, 232 (Iowa 2004). "Injunctive relief is an extraordinary remedy that is granted with caution and only when required to avoid irreparable damage." Nichols v. City of Evansdale, 687 N.W.2d 562, 572 (Iowa 2004) (citations omitted).
A.
Defendants contend there is insufficient evidence to support the district court's finding that due to defendants' actions three times more water flows across the Wright property. They assert the Wrights did not sufficiently show a substantial increase in the volume of water.
William K. Wright was questioned whether defendants' changes would triple the water volume, and he answered that it would "depend on the rain and when it occurred, what the condition of the ground was prior to that." Plaintiffs' expert testified:
Q. And in your opinion, Mr. Johnson, has any of the work done . . . changed the natural flow of the surface water? A. Yes.
Q. What has changed? A. The ponds will not get as deep. They will overflow more frequently.
. . . .
Q. Now, does that change the amount of flow off the property?
A. It can.
Q. How can it do that? A. Well, instead of ponding 2 foot of water, it now only ponds maybe half a foot of water. The water, instead of going over land, would have had to have gone through a tile system; however, if the pond again was full and you had another heavy rain, again it would have been like a parking lot, 100 percent runoff, and you would have gotten a considerable amount of more runoff from east to west.
The ponds covered six or seven acres on the Mitchell property, and one acre of water, one foot in depth, equals 43,560 cubic feet of water.
Whether or not the volume of water tripled, on our de novo review, we determine plaintiffs sufficiently proved a substantial increase in the volume of water that ran to their property due to defendants' changes. See Braverman, 238 N.W.2d at 332.
B.
Defendants claim the Wrights are not entitled to an injunction because there was no evidence the Wrights suffered damages due to defendants' activities. Defendants assert the water is absorbed before it reaches the Wright property. In the alternative, they also claim that water flows across the Wright property, rather than accumulating on it for any appreciable time.
In a somewhat similar case, our supreme court found:
It is conceded no harm had come to plaintiff's land from the drainage of the pond during the years 1951 and 1952, as to which experience was available between the time of construction of the ditch and the trial below. This, however, is said to have been because there were no heavy rains during those years, although there was ample moisture to raise good to exceptionally good crops. Conceding that in some years more moisture falls and sometimes in more concentrated quantities than in others, the plaintiff is still compelled to show, if he can, a reasonable prospect of injury in the future.
Schmitt v. Kirkpatrick, 245 Iowa 971, 979, 63 N.W.2d 228, 232 (1954). The court concluded, "The emphasis is now placed upon the injury or potential injury rather than upon additional water cast upon the servient lands." Id. at 981, 63 N.W.2d at 233.
In Schmitt, the supreme court denied injunctive relief because the plaintiff did not present evidence of the potential increase in the volume of water on his land. Id., 63 N.W.2d at 233. A party may be entitled to relief, even if no current economic damages have been incurred, if there is sufficient evidence of potential injury. See Sloan v. Wallbaum, 447 N.W.2d 148, 149-50 (Iowa Ct.App. 1989) ("The fact that no damage has occurred in the last three years means nothing due to the drought-like conditions. It is inevitable that it will rain and that appellees will be damaged.").
We agree with the district court that the Wrights presented sufficient evidence of potential damage due to increased water flow onto their land. William K. Wright testified the increased surface drainage "would cause damage — that's the reason I'm here, yeah — potentially a lot." Plaintiffs presented evidence of the large increase in the volume of water which could potentially come upon their land.
We find no abuse of discretion in the district court's grant of an injunction in this case. We affirm the decision of the district court.