Opinion
No. 5-015 / 04-0380
Filed February 9, 2005
Appeal from the Iowa District Court for Wapello County, E. Richard Meadows, Judge.
Appellants appeal the district court decision in this nuisance case based on water drainage. AFFIRMED.
Allan Orsborn and Ryan J. Mitchell of Orsborn, Bauerle, Milani Grothe, L.L.P., Ottumwa, for appellant.
Robert Box, Ankeny, for appellee.
Considered by Huitink, P.J., and Miller and Eisenhauer, JJ.
I. Background Facts Proceedings
Donald and Jane Williams are next door neighbors to the east of David Wemer on Glenwood Avenue in Ottumwa. In 1994 Wemer removed the existing house on his property and built a concrete foundation and berm, which raised the back portion of his lot. Wemer also moved dirt onto his lot. The original project was not completed. In 2001 Wemer placed a double-wide mobile home on the front portion of his lot.
The city set-back requirements changed during this time and the new foundation does not meet the new set-back requirements.
The Williamses filed suit against Wemer, claiming the changes to his lot altered the natural drainage of water and caused excess water to come on their lot. The Williamses asserted that Wemer's actions had caused a nuisance which they asked the court to abate. They also sought monetary compensation for water damage to their home. In addition, they asked the court to order Wemer to remove the new foundation because it was in violation of applicable zoning ordinances.
Lyle and Bernadine Greiner were also parties to the suit, but they have not appealed. Judy Wemer was added as a defendant while the case was proceeding, as she became the spouse of David Wemer.
The district court found the changes to Wemer's property increased the water flow, which adversely impacted the Williamses' property. The court appointed a special master, pursuant to Iowa Rule of Civil Procedure 1.935, to recommend "a plan by which water will be diverted across [Wemer's] property and away from the [Williamses'] lots to the extent [Wemer's] lot diverted the water away from [the Williamses'] property before [Wemer] altered his lot. . . ." The special master recommended digging a ditch on the west side of Wemer's property and putting a driveway on the east side, in order to divert water toward the street. The Williamses objected to the special master's report, claiming the only proper solution would be "a restoration of the Wemer lot to the condition that existed prior to the alterations made to the lot by Wemer."
The case was tried to the district court. The court found that by changing the water flow, Wemer caused damage in the amount of $2387.65 to the Williamses' basement. Furthermore, the district court found:
The existing garage foundation not only causes water problems, but it violates city code as well. Restoring the garage to the original foundation dimensions as well as restoring the elevation of the rear of [Wemer's] lot is not an unreasonable or undue hardship on Wemer. It is a practical solution which will allow water to drain onto his lot as it did before the 1994 changes.
. . . Wemer must ensure the water, once on his lot, drains as it did before he altered his lot elevation. A sufficient drainage ditch or tiled area along Wemer's western border would accomplish this requirement and is not an unreasonable hardship — in fact, the evidence shows Wemer intends to do this anyway.
In addition, as recommended by the Special Master, a curb along the eastern edge of Wemer's lot and driveway would further divert excess water away from Williamses' lot.
The evidence supports the steps just set out as a solution. The evidence does not show removing the trailer home, as [the Williamses] request, will decrease the excess water flow to the east. Such removal is an extreme hardship, unwarranted and inequitable.
The Williamses appealed the district court decision.
II. Standard of Review
A nuisance action may be brought in either law or equity. Woody v. Machin, 380 N.W.2d 727, 731 (Iowa 1986). The present action was tried in equity, and our review is de novo. See Iowa R. App. P. 6.4. We give weight to the district court's findings of fact, but are not bound by them. Iowa R. App. P. 6.14(6)( g). We are especially deferential to the district court's assessment of the credibility of witnesses. Weinhold v. Wolff, 555 N.W.2d 454, 458 (Iowa 1996).
III. Abatement of Nuisance
The Williamses contend the district court did not sufficiently order Wemer to abate the nuisance on his property. The claim that in order to fully abate the nuisance, Wemer should be required to: (1) remove the entire new foundation from the back of his lot; (2) restore his lot to its condition before the changes; (3) restore a drainage ditch on the front of his lot; and (4) remove a curb.
Iowa Code section 657.1 (2001) provides for a private cause of action to enjoin and abate a nuisance. The statutory definition of a nuisance in section 657.1 does not modify the common law rules regarding a nuisance. Mel Foster Co. Props. v. American Oil Co., 427 N.W.2d 171, 173 (Iowa 1988).
One such common law rule 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 court may grant an injunction against the wrongful obstruction of the natural flow of waters. See Blink v. McNabb, 287 N.W.2d 596, 601 (Iowa 1980) (citing City of Waverly v. Page, 105 Iowa 225, 231, 74 N.W. 938, 941 (1898)).
In making a determination of the appropriateness of injunctive relief, the court must make a comparative appraisal of all of the factors in the case. Woody, 380 N.W.2d at 731. The court should employ a balancing test of the following factors:
(1) the character of the interest to be protected;
(2) the relative adequacy to the plaintiff of injunction or other remedies;
(3) plaintiff's delay in bringing suit;
(4) plaintiff's misconduct;
(5) the relative hardship likely to result to defendant if injunction is granted and to plaintiff if it is denied;
(6) the interests of third persons and the public; and
(7) the practicality of framing the order or judgment.
Weinhold, 555 N.W.2d at 467 (citing Helmkamp v. Clark Ready Mix Co., 214 N.W.2d 126, 130 (Iowa 1974)).
In considering the nature or scope of injunctive relief, the supreme court has stated:
Wherever a situation exists which is contrary to the principles of equity and which can be redressed within the scope of judicial action, a court of equity will devise a remedy to meet the situation, though no similar relief has been given before.
Holden v. Construction Mach. Co., 202 N.W.2d 348, 363-64 (Iowa 1972). "[T]he grant of denial of injunctive relief, of any nature, unquestionably rests in the sound discretion of the court." Braverman, 238 N.W.2d at 335. We must consider then whether the district court abused its discretion in fashioning a remedy in this case.
A.
Wemer originally planned to build a home at the back of his lot. He removed the existing home and built a new foundation, but was not permitted to proceed because the foundation did not meet city set-back requirements. Wemer then placed a mobile home on the front portion of his lot and planned to build a garage on the new foundation in the back. The foundation was too large to meet city requirements for a garage, however, and Wemer stated he planned to remove part of the foundation. The Williamses claim that Wemer should be required to remove all of the foundation because it failed to meet the city's set-back requirements.
The Ottumwa Zoning Board of Adjustment denied Wemer's request for a variance to construct a garage that exceeded the maximum accessory building area.
The district court found, "The primary reason for the excess water on their lots is Wemer's expanded garage foundation." Thus, in later stating that the foundation "not only causes the water problem, but it violates city code as well," the court was referring to the size of the foundation, not the fact that it failed to meet set-back requirements. There was no evidence that the foundation's failure to meet the set-back requirements constituted a nuisance.
We find the district court did not abuse its discretion in ordering Wemer to restore the garage to the original foundation dimensions of the building he removed. It would be inequitable to require Wemer to remove the entire foundation.
B.
The Williamses claim that the nuisance caused by Wemer's changes to his lot will not be abated unless he is required to restore his lot to its prior condition. They believe the district court did not fashion an appropriate remedy in this case because the court ordered Wemer to further change the flow of water on his lot in an effort to divert the water from the Williamses' lot, instead of ordering him to restore his lot to its original condition.
A landowner "must use his own property so that his neighbor's comfortable and reasonable use and enjoyment of his estate will not be unreasonably interfered with or disturbed." Mel Foster, 427 N.W.2d at 173 (citations omitted). The law does not prohibit a landowner from using his or her own property. See Logsdon v. Anderson, 239 Iowa 585, 590, 30 N.W. 787, 790 (1948) (citation omitted) (emphasis deleted) (noting that a landowner may change the flow of water upon his land "provided he does not cause it to flow upon the appellee's land when it would not have done so, but for such artificial construction").
We find the district court appropriately ordered Wemer to "ensure water, once on his lot, drains as it did before he altered his lot elevation." We conclude it would be excessive, and cause undue hardship to Wemer, to order him to restore his lot to its original condition.
C.
The Williamses assert that the district court should have ordered Wemer to restore a drainage ditch at the front of his property. The district court determined the Williamses had not shown there was a drainage ditch in front of Wemer's lot in the past. The court found Wemer had added dirt and a curb to the front portion of his lot, but these changes did not cause any damage to the Williamses. Based on this evidence, we conclude the district court did not abuse its discretion in failing to order Wemer to install a drainage ditch in the front of his lot.
D.
The Williamses claim Wemer should be required to remove a curb along the east side of his lot. They assert that in the past, some rainwater from their lot drained onto Wemer's lot and the curb prevents this from happening at the present time. The district court noted that the lots in the area generally sloped from the west to east. The court determined the Williamses, who were to the east of Wemer, were not credible in their claim that in the past their lot was higher than his. We find no abuse of discretion in the court's refusal to order the removal of the curb.
We affirm the decision of the district court.