Opinion
No. 5-205 / 04-0390
Filed July 13, 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. REVERSED.
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. William K. Wright farmed Mitchell's land until 1993. Mitchell's land is now 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 the water from the Mitchell land naturally drains toward the Wright land.
In 1998 and 1999, with Mitchell's approval, 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 the digging of the channels, there would have to be about two feet of water in a pothole before it would spill out over the top of the depression. Following the digging of the channels, the overflow occurs with about six inches of water.
The Wrights filed suit against Mitchell and the Repps. 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 plaintiffs relied on the testimony of William K. Wright. Wright testified in part as follows:
Q. Based on your observations, has there been an increase in flow when it has rained compared to what it used to do previously? A. Only the one rain this spring, and it didn't flow harder, but it flowed longer.
. . . .
Q. If this condition of the grading is not remedied, do you have any belief as to what the surface drainage may do to your property in the future? A. Yes, it would cause damage — that's the reason I'm here, yeah — potentially a lot.
The plaintiffs did not call an expert witness and did not present evidence of any current economic damages as a result of the changes in the surface water drainage performed in 1998 and 1999.
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 frequency of the flow toward the Wright land. Johnson also testified that the grading performed by the Repps "should reduce the frequency of the parking lot effect by keeping those potholes drained more efficiently than they were prior to the waterway being constructed."
The district court determined the Wrights were entitled to a permanent injunction. The court found that no economic damages had occurred, but attributed this to a drought period. The court then 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 drought period, 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 Iowa Code section 468.621 (2001), 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 all 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). The holder of a dominant estate has a legal and natural easement in a servient estate for the drainage of surface waters. Franklin v. Sedore, 450 N.W.2d 849, 852 (Iowa 1990). In addition, our supreme court has held that the owner of a dominant estate is not required to retain water in ponds or depressions to his detriment. Moody v. Van Wechel, 402 N.W.2d 752, 757 (Iowa 1987). The owner may divert water by surface drainage even though additional water enters the servient estate. Id. This rule, however, is subject to limitations. 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).
An equity court should not grant injunctive relief unless there is an actual or threatened invasion of rights and a showing that substantial injury will result. Schmitt v. Kirkpatrick, 245 Iowa 971, 977, 63 N.W.2d 228, 231 (1954). The burden to establish these elements is on the plaintiffs. Id. 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).
As noted, the plaintiffs relied on the testimony of William K. Wright and did not secure the opinion of an expert witness, nor did they offer any tests or surveys on the land. Wright observed that during one rain in 2003 the volume of water flowing to his property appeared to increase. He described the increased water flow by stating, "It didn't flow harder, but it flowed longer." However, no damage occurred. This testimony was in accord with the testimony of the defendant's expert that while the grading would likely cause an increase in the frequency of the flow, the amount of flow would not necessarily be more. He also testified the drainage would now be more efficient.
We have carefully reviewed the record in this case and conclude it is insufficient to establish that the surface water drainage project performed by the defendants in 1998 and 1999 caused a substantial increase in the volume of water flowing to the plaintiff's property.
We further conclude the plaintiffs have failed in their burden to establish either current actual damages or a reasonable probability of substantial harm in the future. To conclude otherwise would be to rely solely on speculation in contravention of established case law. Schmitt, 63 N.W.2d at 233.
For the reasons set forth above, we reverse the decision of the district court.