                       IN THE COURT OF APPEALS OF IOWA

                                    No. 13-1498
                             Filed November 26, 2014


A.D., L.L.C.,
       Plaintiff-Appellee,

vs.

2004 SC PARTNERS, L.L.C.,
      Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Woodbury County, Jeffrey L.

Poulson, Judge.



       The owner of an apartment complex appeals from the district court’s grant

of equitable relief to the owner of adjoining property in this action involving the

drainage of surface water from a dominant estate to a servient estate.

AFFIRMED.



       Joel D. Vos and Lance D. Ehmcke of Heidman Law Firm, L.L.P., Sioux

City, for appellant.

       Richard H. Moeller of Berenstein, Moore, Heffernan, Moeller & Johnson,

L.L.P., Sioux City, for appellee.



       Heard by Vogel, P.J., and Vaitheswaran and Potterfield, JJ.
                                             2


POTTERFIELD, J.

       2004 SC Partners, LLC (Partners)—the current owner of an apartment

complex known as Morning Hills Apartments—appeals from the district court’s

grant of equitable relief to the owner of lower-lying adjoining property—A.D.,

L.L.C. (A.D.)—in this action involving drainage of surface water from a dominant

estate to a servient estate. Partners argues the district court erred in (1) ruling it

could be held liable for not abating an unreasonably dangerous condition on its

property; (2) concluding A.D.’s claim was not barred by the statute of limitations;

(3) awarding any recovery to A.D. despite finding it 65% at fault; and (4) granting

equitable relief to A.D. without balancing the equities.1 For the reasons that

follow, we affirm.

I. Background Facts and Proceedings.

       These adjoining property owners have been at odds since A.D. purchased

its property in 2009. Partners filed a suit against A.D. in 2009, alleging A.D. was

undermining Partners’ hillside by grading A.D.’s lower property. However, the

2009 suit was dismissed because the neighbors had apparently reached a

settlement agreement. Unfortunately, the settlement did not settle the issues

between the property owners.



1
  Partners also contends the district court erred in denying its motion for summary
judgment. We do not address this claim. See Lindsay v. Cottingham & Butler Ins.
Servs., Inc., 763 N.W.2d 568, 572 (Iowa 2009) (“The denial of a motion for summary
judgment is no longer appealable once the matter proceeds to a trial on the merits. After
a trial on the merits, the denial of the motion for summary judgment merges with the trial
on the merits.” (citation omitted)); see also Estes v. Progressive Classic Ins. Co., 809
N.W.2d 111, 114 (Iowa 2012) (“When the district court denies a party’s motion for
summary judgment and the party appeals the final verdict, we review the issues raised in
the unsuccessful motion for summary judgment based on the record made during trial
and on the motion for directed verdict to determine if the district court committed error.”).
                                        3


       Beginning in 2009, A.D. received notices from the city of Sioux City and

the Iowa Department of Natural Resources (DNR) to abate a public nuisance,

citing erosion and silting. The hillside between Partners’ property and A.D.’s

property is composed of highly-erodible loess soil, which continued to erode and

cause silt buildup on and around A.D.’s acreage. Claiming it was not alone

responsible for the problem, A.D. (the servient estate) filed this equity action in

July 2011, in which it alleged,

              The improvements upon the defendant’s [Partners’] real
       estate, including those relating to drainage, and defendant’s
       [Partners’] operation of the real estate causes storm water to drain
       and discharge onto [A.D.’s] real estate in a manner, quantity, and
       rate that are not the natural and usual course of drainage and
       discharge, and otherwise not in compliance with applicable law.

A.D. asserted the drainage had caused and would continue to cause temporary

and permanent damage to its property. A.D. sought both a money judgment for

past damages, and a judgment and decree ordering Partners to abate the

conditions that were causing the damage to A.D.’s property.

       Partners answered and asserted several defenses.         The first defense

provided:

              The dispute raised by Plaintiffs Petition was previously
       addressed in an action filed in this Court on May 28, 2009, as Case
       No. EQCV-140187. The matter was resolved privately. Part of the
       resolution was that the Plaintiff would comply with local government
       requirements regarding the grading and lateral support issues and
       that the Plaintiff would take the action necessary to come into
       compliance regarding the Iowa Department of Natural Resources
       Notice of Violation issued to the Plaintiff on August 8, 2009 (copy
       attached as Exhibit 1), and in so doing would have resolved the
       grading/lateral support issue and the storm water flow issue without
       further damages or expense to the Defendant.
                                          4


       Partners also asserted: the damage claimed was a result of A.D.’s “own

negligent and wrongful actions”; as the dominant estate, Partners had a drainage

easement over A.D.’s servient estate; the petition failed to state a claim upon

which relief could be granted; A.D.’s claims were barred by the statute of

limitations; the negligence of others was a proximate or concurring cause of the

damages; and A.D. had failed to mitigate its damages.

       Partners filed a counterclaim, asserting A.D. had failed to comply with the

settlement agreement between the parties and requesting the court order A.D. to

“promptly stabilize the slopes” created by its excavation work, require A.D. to

come into compliance with DNR requirements “and in so doing properly and

adequately handle the surface water coming onto its property,” and compensate

Partners for damage to its land and as a result of the prior suit.

       On March 9, 2012, Partners filed a motion for summary judgment in which

it asserted it was the dominant estate and

       [b]ecause Plaintiff [A.D.] cannot produce evidence that 2004 SC
       Partners has engaged in conduct that substantially increased the
       natural flow of surface water from the dominant estate onto the
       servient estate, and that any such increase in the natural flow of
       surface water caused damages to the servient estate, there is no
       genuine issue of material fact to be tried by this case.

In support of its motion, Partners averred,

              4. Surface water drains from the Morning Hills site owned by
       2004 SC Partners onto the adjoining land owned by AD, LLC
       through high-density polyethylene (HDPE) drain piping.
              5. The HDPE drainage system follows the natural flow of
       surface waters from the relatively higher parcel owned by 2004 SC
       Partners onto the relatively lower parcel owned by AD, LLC.
              6. 2004 SC Partners has made no changes or alterations to
       the HDPE drainage system on the Morning Hills Property, either
       before or after AD, LLC acquired the adjoining real property.
                                          5


                  7. The amount of surface water flowing through the HDPE
          drainage system has not increased or decreased due to any activity
          attributable to 2004 SC Partners.
                  8. The direction of surface water runoff has not changed in
          any manner as a result of the conduct of 2004 SC Partners.

(Citations omitted.)

          A.D. resisted the motion for summary judgment, asserting it could

establish that Partners’ drainage system had changed the natural flow of water,

and that Partners had allowed the system to fall into disrepair causing the “risk of

complete failure and collapse.” It argued Partners failed to exercise ordinary

care by its “total failure . . . to maintain its drainage system at its termination

point.”

          In ruling on the summary judgment motion, the district court noted the

“general rule” that the dominant estate is entitled to drain surface water in a

natural water course over the servient owner’s land and, if any damage results,

the servient owner is without remedy, subject to the qualification that “[i]f the

volume of water is substantially increased or if the manner and method of

drainage is substantially changed and actual damage results, the servient owner

is entitled to relief.” And citing Oak Leaf Country Club v. Wilson, 257 N.W.2d

739, 745-46 (Iowa 1977), the court also observed, “A corollary of the rule is an

overriding requirement that one must exercise ordinary care in the use of his

property so as to not injure the rights of neighboring landowners.”

          The court found,

                The essential issue in this case is whether or not SC
          Partners is discharging water in an unnatural manner, has changed
          the method of drainage in such a way that it has become liable for
          damages, or, stated another way, whether it is exercising ordinary
                                        6


       care in the use of its property so as not to injure the rights of
       neighboring landowners.

It concluded there were questions of fact as to whether or not “Partners has

violated a duty to use ordinary care in the maintenance of [its] property, and

whether or not a private nuisance has been established.”       The district court

therefore denied the motion for summary judgment.

       Prior to the bench trial, the attorneys and the presiding judge viewed the

property at issue.

       At the May 2, 2013 trial, A.D.’s representative, Casey Fenton, testified

A.D. obtained the property adjoining the west and south sides of Partners’

property in February 2009, intending to develop the land. Partners’ property was

uphill from A.D.’s property. Fenton testified about Partners’ drainage system.

That system diverted about two-thirds of the storm water from the roofs and

eaves of eight apartment buildings, as well as from the sidewalks and parking lot

surrounding the apartments, towards the western side of Partners’ property. The

storm water so directed flows through two culverts and into and through an

underground metal drain pipe, exiting into an “L” shaped concrete channel

(spillway). The water then is directed toward a concrete bulkhead bordered by

an earthen berm that is located near the western edge of Partners’ property. At

the bulkhead, water is expected to flow into two high density polyethylene

(HDPE, i.e. plastic) pipes, which should carry the water underground and down

the hill. However, A.D.’s exhibits show those pipes hanging off the concrete

bulkhead in damaged condition, seemingly suspended in midair and not
                                           7


connected to anything. The concrete bulkhead lies on Partners’ property and

about ten to fifteen feet from the western edge.

       Fenton testified that under the bulkhead on Partners’ property is a “void,”

which in his opinion was caused by “[c]ontinuous failure of maintenance.”

Partners’ objected as “speculation” and the court sustained the objection due to

lack of foundation. Fenton then testified the void was present in 2009 under the

bulkhead and was caused when “soil collapsed underneath this and eroded away

through multiple times of rains where the earth[en] berm had been slowly

deteriorating away and water drained alongside the bulkhead, therefore

collapsing the soil underneath.” He testified the gap on the edge of the concrete

bulkhead should have been filled and the failure to do so resulted in

“uncontrollable water.” Fenton testified he repeatedly had proposed connecting a

pipe to Partners’ drainage system so as to divert the storm water, but Partners’

principal, Lew Weinberg, refused unless and until A.D. paid Partners’ attorney

fees from the 2009 litigation.

       Fenton also testified that, in an effort to control the erosion from its side, in

May through August 2011, A.D. had excavated its side of the property line, built a

retaining pond to capture storm water below the bulkhead, and installed a piping

system to direct the water further down the hill and into the city’s storm water

system.    However, Fenton stated the storm water flowing around Partners’

bulkhead had caused and continued to cause erosion away from A.D.’s system

and water was finding its own way downhill, which was continuing to damage

A.D.’s property.
                                         8


       Civil engineer Scott Gernhart testified he was contacted by Fenton in July

2009 to prepare an updated grading plan for A.D.’s property. He testified he saw

the neighboring property bulkhead when he first viewed A.D.’s property and

observed “[t]he soil under the concrete had eroded, and basically the slab was

floating in air and supported on the sides, but there was definitely some soil

missing.”    Gernhart also testified that the grading plan he prepared had a

notation, “existing drainage condition not to be disturbed.” He explained that was

because “there had to be additional efforts to go onto the adjacent property”

because “[t]he storm water coming from the apartment site—was such a great

volume and intensity that there was no way to control that without tying into the

storm water system and designing a system to carry it off the site.”

       Jon Sulzbach, president of Sioux City Engineering Company, testified he

had been contacted by Fenton in the fall of 2010 to review the A.D. property to

try to remedy erosion problems from the neighbors. Sulzbach stated he believed

the “problem exists up on the apartment’s site” and Fenton needed to “figure a

way to get on the property to repair it.” Sulzbach opined the “failure” started

some thirty to forty feet behind the bulkhead in the concrete trough or channel

leading to the bulkhead. He also testified the HDPE pipes were “not performing

in whatever the design intent was of that structure.”

       Professional engineer Ryan Callaghan then testified about the increased

runoff of surface water that results when land is developed with impervious

materials.   He testified he had viewed Partners’ drainage system from the

apartments and opined the concrete channel and headway (or bulkhead) were

not being properly maintained. He testified the concrete structure and ditch walls
                                         9


presented a “very unsafe, unstable condition.” Callaghan stated the structure

was not “letting the water out in what I would call a reasonable . . . standard of

care from the apartment complex.” He explained, “[T]here appear to be cracks

both longitudinally and transverse which is allowing water to escape from the

channel through the cracks underneath the structure,” undermining the bulkhead

and creating “a very unsafe, unstable condition.” Callaghan also testified it was

not possible for Partners’ drainage system to work without there being a better

connection between it and A.D.’s property. It was his opinion that the uphill

owner should cooperate with A.D. to allow its water to safely enter A.D.’s system,

and it was a lack of ordinary care not to do so.

       Partners called civil engineer Chris Jens. Jens testified that the surface

water flowing from Morning Hills apartment complex followed the “natural

drainage out of the site.” He agreed with Callaghan that the concrete bulkhead

or headwall used was unusual, but stated it was an “acceptable method” for the

time it was constructed (in the 1970s). He also agreed the end of Partners’

drainage system was “pretty badly eroded.” Jens testified, however, that the

measures taken by A.D. in constructing a pool below the bulkhead impeded the

flow of surface water and caused the void below the bulkhead, as well as

additional erosion to A.D.’s property. On cross examination, Jens testified the

bulkhead, or headwall as he referred to it, in its existing condition, was not

functioning as originally intended because the headwall was “breached . . . on

the one side,” and there were cracks in the concrete channel. He agreed that for

the structure to function as it was intended, the structure had to be maintained

from time to time.
                                         10


       Lew Weinberg, the managing member of Partners, testified Partners had

purchased the Morning Hills apartment complex in 2005 and had made “[n]o

changes” to the drainage system since the purchase. Weinberg acknowledged

Fenton had approached him to “address the water drainage off of our site that

was going onto his property and was proposing that—the potential of buying a

piece of our property in order to build a retention pond and to alleviate the

drainage issue.” Weinberg responded there was no interest in selling any of

Partners’ property. Weinberg testified that Fenton then proceeded to clear A.D.’s

property of trees, which led to the previous 2009 lawsuit. He testified he believed

that the breach to the side of the bulkhead was caused by “backhoe work that

was going on by Fenton’s crew when they were moving dirt in that area.”2

       Following the one-day bench trial, the district court concluded A.D.’s

evidence was insufficient to allow it to succeed “on a claim based on increased

volume of outflow or change in manner or method of outflow.” However, the

court concluded A.D.’s petition included sufficient facts to plead an alternative

claim of negligence. The court found Partners had a duty to be aware of a

dangerous condition on its property, i.e. the degraded drainage system that was

causing injury to A.D.’s property, and failed to abate the condition after having a

reasonable time to do so.

       The trial court found A.D. had suffered damages in the amount of $92,800

as a result of Partners’ failure to abate the problems with the drainage system.

However, the court then found A.D. purchased the property knowing there was a

2
  Inasmuch as the bulkhead is part of Partners’ drainage system and lies on Partners’
property some ten to fifteen feet from A.D.’s property line, Weinberg’s opinion is
questionable.
                                          11


problem with the neighboring drainage system, which was causing damage to

the property, and that A.D. acted in a negligent manner inasmuch as it began

work on the property without a specific plan to deal with the drainage issue and

did not follow grading plans prepared by engineers. The court concluded A.D.

was sixty-five percent and Partners was thirty-five percent at fault for the damage

to A.D.’s property. Because A.D. was more than fifty percent at fault, under

Iowa’s Comparative Fault Act, it could not recover damages. However, the court

found A.D. “can still receive equitable relief because the remaining affirmative

defenses that [Partners] has raised do not insulate [Partners] from all liability.”

       The court rejected Partners’ statute of limitations defense, finding the five-

year statute of limitations applicable on a claim for damage to real property did

not begin to run until 2009 “because A.D. could not have had actual or imputed

knowledge of the damage until it inspected or purchased the property.” Partners

did not prove the damage to the property eventually purchased by A.D. occurred

before the 2009 purchase.       The court next found it could not conclude that

something other than Partners’ failure to abate the drainage system was the sole

proximate cause of damage to A.D.’s property. The court also ruled that the

easement a dominant estate has on a servient estate cannot provide a defense

to a negligence claim.      Finally, the court concluded Partners had failed to

establish the parties had a prior settlement agreement, which nullified any

defense based on an agreement.

       The court wrote in summary:

              Based on the foregoing discussion, the Court finds that
       [Partners’] drainage system is damaging A.D.’s undeveloped lot,
       [Partners] knew that its drainage system was causing damage,
                                        12


       [Partners] knew that A.D. did not consent to the drainage system,
       and [Partners] has failed to correct the issue after having
       reasonable time to do so. This Court finds that [Partners] had a
       duty to abate the condition, and that it breached that duty. The
       Court also finds that A.D. failed to mitigate its damages when it did
       work without expert guidance and failed to follow a grading plan
       and that it should be held at fault for purchasing property with
       obvious damage. Accordingly, the Court finds that under Iowa’s
       Comparative Fault Act, [Partners] is thirty-five percent at fault for
       the damage to the A.D. lot and A.D. is sixty-five percent at fault.
       Because A.D. is more than fifty percent at fault, it is barred from
       recovering damages. This Court orders [Partners] to take whatever
       action necessary to abate the condition that is damaging A.D.’s
       property and orders A.D. to allow such access to its property as is
       prudent and necessary for [Partners] to abate the condition.

       Partners appeals, contending the district court erred in ruling it could be

held liable for not abating a dangerous condition on its property. It notes that

A.D.’s petition never pled or even described Partners’ surface water drainage

system as a “dangerous” condition and it contends the district court “went beyond

its authority” in concluding A.D.’s petition gave rise to such a claim. Partners

also argues the court erred in concluding A.D.’s claim was not barred by the

statute of limitations, in awarding a recovery to A.D. despite finding it sixty-five

percent at fault, and in granting equitable relief to A.D. without balancing the

equities.

       II. Scope and Standards of Review.

       “Because the proceeding in the district court was tried by equitable

proceedings, our review of both the facts and the law is de novo.” Fairfax v.

Oaks Dev. Co., 713 N.W.2d 704, 706 (Iowa 2006); see also Iowa R. App. P.

6.907 (“Review in equity cases shall be de novo.”). We are not bound by the

district court’s fact-findings, but we give them weight, especially in deciding

witness credibility. City of Okoboji v. Okoboji Barz, Inc., 746 N.W.2d 56, 60 (Iowa
                                        13


2008). We have a duty to examine the entire record and adjudicate anew the

rights on the issues properly presented. In re Marriage of Williams, 589 N.W.2d

759, 761 (Iowa Ct. App. 1998).

      III. Discussion.

      A. Liability.   Partners is offended by the trial court’s finding that its

drainage system was a dangerous condition, which was not asserted in A.D.’s

pleadings. It attempts to confine A.D. to a suit based solely on damage caused

by “an unnatural amount of water to be discharged on to A.D.’s land.” It relies

upon a defense that, in essence, it has done nothing to the drainage since

purchasing the property and thus whatever flow there is the “natural flow” for

which it has an easement as the dominant estate.

      This line of argument is not supported by the course of the proceedings

below. While we believe the district court’s use of the term “dangerous condition”

is somewhat confusing, Partners was given ample notice by the pleadings, the

summary judgment ruling, and the evidence presented by A.D. that its drainage

system was ineffective and unstable and its duty of ordinary care was at issue.

The district court properly observed that “one must use ordinary care in the use

of his property so as not to injure the rights of neighboring landowners.” Oak

Leaf Country Club, 257 N.W.2d at 745.

      Partners, however, focuses solely on the “general rule”—that “the

dominant estate is entitled to drain surface water in a natural water course from

his land over the servient owner’s land and, if any damage results, the servient

owner is without remedy.” Rosendahl Levy v. Iowa State Hwy. Comm’n, 171

N.W.2d 530, 536 (Iowa 1969); see also Oak Leaf Country Club, 257 N.W.2d at
                                         14


745.     Partners argues the evidence did not establish that the Partners had

substantially increased or changed the manner or method of drainage and

therefore A.D. was not entitled to relief. It complains that A.D.’s pleadings did not

give it notice that any other claim was at issue.

         We are not confined to Partners’ characterization of A.D.’s pleading. The

district court’s ruling denying summary judgment emphasized:

                The essential issue in this case is whether or not SC
         Partners is discharging water in an unnatural manner, has changed
         the method of drainage in such a way that it has become liable for
         damages, or, stated another way, whether it is exercising ordinary
         care in the use of its property so as not to injure the rights of
         neighboring landowners.

The court denied Partners’ summary judgment motion, concluding there

remained questions of fact as to whether or not “Partners has violated a duty to

use ordinary care in the maintenance of [its] property, and whether or not a

private nuisance has been established.”

         In Schropp v. Solzman, 314 N.W.2d 413, 414 (Iowa 1982), the plaintiffs

sued adjoining landowners for mud and water damage caused by the failure of

the defendant’s berms, which had been constructed to control the flow of surface

water.     The supreme court found that because the defendants knew that

motorcycle traffic was damaging their property, the defendants were under a duty

to the plaintiffs to take reasonable measures to inspect and maintain the artificial

embankments and dikes. Schropp, 314 N.W.2d at 415. Because the berms

were damaged, the defendants were liable for the damage caused when water

and mud flowed onto the adjoining property. Id. The supreme court stated,

“[T]he record supports the trial court’s finding of a complete absence of corrective
                                           15

measures or maintenance in an attempt to repair or alleviate the conditions.” Id.

at 416. Such is the case here and we find Partners’ attempts to distinguish this

case from Schropp unconvincing.3

         All the engineer witnesses opined a landowner has a duty to maintain its

drainage system. There was ample evidence Partners had knowledge its system

was not functioning as it should. A picture (or two) can be worth a thousand

words.     This is the bulkhead at the end of Partners’ drainage system as it

appeared in July 2009:




The breach or gap between the concrete and berm described by the testifying

engineers is visible above on the right side of the concrete bulkhead, as is the


3
  Partners’ reliance on this court’s opinion in Newlin v. Callender, No. 10-1014, 2011 WL
5460279 (Iowa Ct. App. Nov. 9, 2011), is also unpersuasive. The Newlin court stressed
“no evidence was presented to prove that the Callenders had failed to maintain the
pond, which prevented it from operating as intended.” Newlin, 2011 WL 5460279, at *8.
                                           16


severe erosion below the “floating” bulkhead.4 The cracks in the channel can be

seen in the picture below.




       Partners also had knowledge the underlying loess soil was highly erodible.

It concededly has done “nothing” to the drainage system despite its knowledge

that is drainage system was damaged and not working as intended. In failing to

maintain the drainage system, surface water was not channeled down the hill

through the pipes of Partners’ system, but had made its way through alternate

routes, causing damage to A.D.’s property. “[L]iability . . . exists if (1) the manner

or method of drainage is substantially changed and (2) actual damage results.”

O’Tool v. Hathaway, 461 N.W.2d 161, 163 (Iowa 1990). Here, the manner or

method of drainage has substantially changed by Partners’ failure to maintain its

drainage system and because actual damage continues to result, “the servient



4
 Callaghan testified the condition was not safe and that he “would not have stood” in the
position that the photographer must have to take this picture; “I’ve looked at it from
above.”
                                           17

owner is entitled to relief.” See Oak Leaf Country Club, 257 N.W.2d at 745; see

also Schropp, 314 N.W.2d at 415.

       B. Statute of limitations. Partners contends the district court erred in

rejecting its statute of limitations defense because any cause of action accrued

“decades” ago when the drainage system was constructed. But this contention is

based upon the faulty premise that the cause of damage is a drainage system

that is functioning as intended.        The breach of ordinary care here is the

defendant’s failure to maintain or attempt to repair or alleviate the damaged

drainage system after being informed by A.D. of the condition. See Schropp, 314

N.W.2d at 416.

       The five-year limitations period begins to run upon accrual of the claim.

See Iowa Code § 614.1(4) (2011) (providing five-year limitations period for

“injuries to property”).    “Generally, a claim accrues when the wrongful act

produces injury to the claimant.” Hallett Constr. Co. v. Meister, 713 N.W.2d 225,

230 (Iowa 2006) (citations and internal quotation marks omitted).             Under the

discovery rule, a cause of action based on negligence does not accrue until the

plaintiff has discovered that it has suffered injury or by exercise of reasonable

diligence should have discovered it. Bob McKinness Excavating & Grading, Inc.

v. Morton Bldgs. Inc., 507 N.W.2d 405, 408 (Iowa 1993). “The discovery rule

tolls the statute of limitations until the plaintiff has discovered the fact of the injury

and its cause.”     Hallett Constr., 713 N.W.2d at 231 (citations and internal

quotation marks omitted).

       Once a claimant learns information that would inform a reasonable
       person of the need to investigate, the claimant is on inquiry notice
       of all facts that would have been disclosed by a reasonably diligent
                                          18


       investigation. A claimant can be on inquiry notice without knowing
       the details of the evidence by which to prove the cause of action.

Id. (citations and internal quotation marks omitted).

       While we agree with Partners that A.D. had notice there was surface water

being discharged from the dominant estate when it purchased the lower lying

property, as Partners acknowledges, the discovery rule is designed to mitigate

the harsh results which might otherwise flow from strict adherence to the statute

of limitations when an injured party is wholly unaware of the nature of its injury

and the cause of the injury. See Speight v. Walters Dev. Co., 744 N.W.2d 108,

115-16 (Iowa 2008).       Only after purchasing the adjoining property, did A.D.

became aware that in order to alleviate excess erosion on A.D.’s property it

needed to be able to tie into or alter the conditions on Partners’ property. We

conclude it was at this point A.D. knew of both the fact of injury and its cause. In

any event, we do not believe the five-year statute of limitations bars A.D. of

equitable relief from a continuing wrong, that is, Partners’ failure to maintain and

repair its faulty drainage system. See Hegg v. Hawkeye Tri-County REC, 512

N.W.2d 558, 559-60 (Iowa 1994).

       C. Comparative fault does not bar injunctive relief. Partners argues

the Iowa Comparative Fault Act bars A.D. from any recovery.              We reject its

reading of the statute.

       Iowa Code section 668.3 provides in part:

              (1)(a) Contributory fault shall not bar recovery in an action by
       a claimant to recover damages for fault resulting in . . . injury to . . .
       property unless the claimant bears a greater percentage of fault
       than the combined percentage of fault attributed to the defendants,
       third-party defendants and persons who have been released
       pursuant to section 668.7, but any damages allowed shall be
                                        19


       diminished in proportion to the amount of fault attributable to the
       claimant.

(Emphasis added.)

       Partners argues—without citation to any authority—that more than fifty

percent contributory negligence on the plaintiff’s part bars any recovery, not just

monetary damages.        But the language of the provision does not state

contributory negligence shall bar recovery. By its terms it applies “in an action by

a claimant to recover damages.” Iowa Code § 668.3(1)(a) (emphasis added).

       “In general, the purpose of section 668.3 is to make defendants pay in

proportion to their fault.” Godbersen v. Miller, 439 N.W.2d 206, 208 (Iowa 1989).

“Under chapter 668, only a person found to be fifty percent or more at fault is

jointly and severally liable for economic damages.” Estes v. Progressive Classic

Ins. Co., 809 N.W.2d 111, 115 (Iowa 2012) (emphasis added).

       Comparative fault principles, however, do not reduce punitive damages

because “[p]unishment, not compensation, is the goal” of punitive damages. Id.

Similarly, the goal of injunctive relief is to avoid future harm, not to provide

compensation. See Jenkins v. Pedersen, 212 N.W.2d 415, 420 (Iowa 1973)

(“Injunction is primarily a preventive remedy and looks to the future rather than to

the past and is not used to punish wrongful acts already committed.”). We are

not convinced A.D. is barred from equitable relief by its contributory negligence.

       D. Availability of equitable relief. “An injunction may be obtained as an

independent remedy by an action in equity, or as an auxiliary remedy in any

action.” Iowa R. Civ. P. 1.1501. “In order to obtain an injunction, a party must

show ‘(1) an invasion or threatened invasion of a right, (2) substantial injury or
                                        20

damages will result unless an injunction is granted, and (3) no adequate legal

remedy is available.’” In re Estate of Hurt, 681 N.W.2d 591, 595 (Iowa 2004)

(emphasis added) (citation omitted)).        We exercise our discretion when

determining whether to issue an injunction based on traditional principles of

equity applied to the specific circumstances of a case.         Nichols v. City of

Evansdale, 687 N.W.2d 562, 572 (Iowa 2004). The following factors aid in our

determination:

              “(a) the nature of the interest to be protected,
              (b) the relative adequacy to the plaintiff of injunction and of
       other remedies,
              (c) any unreasonable delay by the plaintiff in bringing suit,
              (d) any related misconduct on the part of the plaintiff,
              (e) the relative hardship likely to result to defendant if an
       injunction is granted and to plaintiff if it is denied,
              (f) the interests of third persons and of the public, and
              (g) the practicability of framing and enforcing the order or
       judgment.”

Id. (quoting Restatement (Second) of Torts § 936(1)).

       A consideration of the relevant factors weighs in favor of an injunction.

Partners contends it has the right to drain its storm water over the servient

estate. But it ignores its duty of ordinary care to use of its property so as not to

injure the rights of neighboring landowners, as well as its duty to maintain its

drainage system. Nor does A.D. have an adequate remedy at law for future

damage to its property if Partners is not required to abate the condition.

Although money damages were available to A.D. for past damage, future harm

can be remedied only by injunctive relief. Partners has no right to continue in its

complete failure to attend to the known and obvious failings in its own drainage
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system, which sits in highly erodible soil.       An order to abate its continuing

negligence is not beyond the scope of the court’s authority.

       We do not find A.D. unreasonably delayed in bringing suit or otherwise

came to the court with unclean hands. And an injunction is the only remedy that

will bring an end to Partners’ continuing failure to attend to its duty to maintain

and repair its drainage system.5     Moreover, we conclude the public has an

interest in these two property owners curbing continuing erosion and run off on to

the roadway adjacent to A.D.’s property.

       We therefore enjoin Partners from continuing to allow its drainage system

to function without repair and order it to take whatever action is necessary to

ensure that its drainage system is properly functioning at its own cost.

       We further order Partners to allow A.D. such access to Partners’ property,

if required, to tie into a properly functioning drainage system, which will allow

storm water to safely traverse A.D.’s property.

       AFFIRMED.




5
 A.D. has not cross-appealed the finding that it is barred from recovering monetary
damages.
