                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0979
                               Filed July 24, 2019


ROBERTA R. COUNTRYMAN, TRUSTEE OF THE RONALD W. WOODBURY
GENERATION SKIPPING TRUST,
    Plaintiff-Appellee,

vs.

CHARLES B. LEX,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Webster County, William C. Ostlund,

Judge.



      Charles B. Lex appeals from a district court order requiring him to replace

obstructed drainage tile located beneath his land preventing water from flowing off

a neighboring property and under his property. AFFIRMED.



      Andrew B. Howie and James R. Hinchliff of Shindler, Anderson, Goplerud

& Weese, P.C., West Des Moines, for appellant.

      James L. Kramer of Johnson, Kramer, Mulholland, Cochrane & Cochrane,

P.L.C., Fort Dodge, for appellee.



      Heard by Vaitheswaran, P.J., and Tabor and Bower, JJ.
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VAITHESWARAN, Presiding Judge.

       This appeal arises from a dispute over obstructed drainage tile running

beneath the ground from one landowner’s farm field to a field of the neighboring

landowner.

       Plaintiff Roberta R. Countryman, trustee of the Ronald W. Woodbury

Generation Skipping Trust, which owned one of the fields, sued Charles B. Lex,

owner of the other field. Countryman alleged Lex “permitted trees . . . to grow over

the private tile on [the trust’s] land with the result that the roots of the trees . . .

entered and obstructed the private tile, preventing it from carrying drainage waters

from [the trust’s] land to the county tile.” Countryman sought injunctive relief and

damages for crop losses and diminished land value. Following trial, the district

court ordered Lex to “replace the obstructed tile with new, 12-inch plastic,

corrugated, non-porous tile.” The court also ordered damages for crop losses. Lex

appealed.

       Lex contends the district court should not have found an easement “on

subsurface tiling from the trust property onto [his] property.”           In his view,

Countryman failed to prove an easement by: (1) express grant or reservation,

(2) prescription, (3) necessity, or (4) implication. Countryman counters that the

trust had a statutory and common law “right to drain its land via subsurface

drainage tile across Lex’s land to the county’s main drain.” Countryman implies

the right arises independently of the four types of easements enumerated by Lex.

We agree with Countryman.

       Iowa Code section 468.621 (2017) authorizes “[o]wners of land” to “drain

the land in the general course of natural drainage by constructing or reconstructing
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open or covered drains, discharging the drains in any natural watercourse or

depression so the water will be carried into some other natural watercourse.” The

provision has survived in largely the same form for more than a century. See, e.g.,

Schlader v. Strever, 138 N.W. 1105, 1107 (Iowa 1912) (“[P]rominence is to be

given the recent statute, [Iowa] Code Supp. § 1989a53, which provides that owners

of land may drain the same by the construction of open or covered drains

discharging the same into any natural water course or into any natural depression

whereby the water will be carried into some natural water course . . . .”); Valentine

v. Widman, 135 N.W. 599, 600 (Iowa 1912) (quoting Iowa Code section 1989a53,

which stated: “Owners of land may drain the same in the general course of natural

drainage, by constructing open or covered drains, discharging the same into any

natural water course, or into any natural depression, whereby the water will be

carried into some natural water course . . . .”). As construed, the statute affords

“[a]n upper landowner . . . the right to construct a drain in order to carry water from

his land in its natural and usual course onto and over the land of another unless

[the] quantity of water thrown upon the other’s land is materially and unduly

increased to his damage.” Cundiff v. Kopseiker, 61 N.W.2d 443, 445 (Iowa 1953).

The upper landowner or “dominant estate has the right to discharge water upon”

the lower landowner or “servient estate whether such water is surface water or

from a natural water course, either open or tiled.” Id. at 446. In determining the

dominant estate holder and the servient estate holder, the “general movement of

flood waters is not determinative.” Downey v. Phelps, 208 N.W. 499, 502 (Iowa

1926). Each is determined “largely by the elevations of the lands.” Id.; see also

Moody v. Van Wechel, 402 N.W.2d 752, 757 (Iowa 1987); Ctr. For Transp.
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Research & Educ., Iowa State Univ., Iowa Drainage Law Manual 78 (2005),

http://publications.iowa.gov/19966/1/IADOT_tr_497_Iowa_Drainage_Law_Manua

l_April_2005.pdf. These principles derive from the statute and opinions construing

the statute as well as a common law easement for natural water courses. See

McKeon v. Brammer, 29 N.W.2d 518, 527 (Iowa 1947) (discussing various types

of common-law easements but stating, “In any event, [the predecessor to Iowa

Code section 468.621] provides that owners of land ‘may drain the same in the

general course of natural drainage by constructing open or covered drains’” and “it

seems that the rule under the statute now is that the upper proprietor may drain

his land through natural watercourses in a way to increase the water that is to flow

over the servient land, providing the increase is not too great or in such unnatural

quantities ‘as to be the cause of substantial injury’”); Maben v. Olson, 175 N.W.

512, 513 (Iowa 1919) (“[T]he right to drain into a natural water course is an

easement appurtenant to the lands, and that all must take notice of the fact that

the drainage may throw more water into that natural outlet.”).

       Applying the statute as construed, there is little dispute the trust property

was at a higher elevation than Lex’s property and the general course of natural

drainage was from the southern portion of the trust property through the Lex

property.   A Webster County supervisor testified, “It was pretty obvious just

standing at the road that there’s a hill there.” He noted the water “would have to

go to the south” and, of necessity, cross Lex’s property to the county drain. He

stated there was “no way possible” the water could drain through an alternate

drainage system to the north. One of the individuals who farmed the trust’s land

seconded this opinion. He testified the property was situated uphill from Lex’s
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farmland, and water could not drain to the north because “[t]he water won’t run

uphill.” Even Lex agreed some of the trust’s land was at a higher elevation than

his. Although he noted a portion of both properties were “at approximately the

same level,” he did not seriously dispute the overall elevations.

       Just as the land elevation was essentially undisputed, so too was the

existence of a tile line beneath the properties. Countryman’s husband testified the

clay tile had “been there for a long time” and preexisted the trust. Another witness

pegged construction of the line to at least the 1970s, based on the clay composition

of the tiles. Although Lex was unaware of the line when he obtained his land

twenty-two years before trial, he confirmed its existence with the county engineer

and referred to part of the line as “my tile.”

       With those key facts established, the only remaining factual question was

whether Lex obstructed the tile line to prevent the natural flow of water.

       The general principle of law is ‘that the owner of the upper or
       dominant estate has a legal and natural easement in the lower or
       servient estate for the drainage of surface waters, that the natural
       flow or passage of the waters cannot be interrupted or prevented by
       the servient owner to the detriment or injury of the dominant
       proprietor . . . and that the owner of the dominant estate may cast an
       additional quantity of surface water upon the servient estate; if in so
       doing, he does not thereby do substantial damage to the servient
       estate.’

Ditch v. Hess, 212 N.W.2d 442, 448 (Iowa 1973) (citation omitted).                   Lex

acknowledged his contract with the Conservation Reserve Program did not allow

trees to grow on his property. He also confirmed the tile was “totally blocked by

. . . tree roots . . . and soil.” He stated he had not “removed all of the trees” or “all

of the roots.” The result of the obstruction was pooling of water on the trust’s field

and damage to crops.
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       On our de novo review, we conclude Lex obstructed the natural waterway

to the detriment of the trust. See Moody, 402 N.W.2d at 757 (“The flow may not

be diverted by obstructions erected or caused by either estate holder. . . . When

fences, as they sometimes do, become filled with debris or soil, whether carried by

water or directly built up by tillage of the soil, or when the obstruction results from

growth of trees or brush, they should be cleared.”); McKeon, 29 N.W.2d at 527

(concluding plaintiffs were entitled to have metal dam across a tile line removed);

Schlader, 138 N.W. at 1107 (“[T]he drainage in question is along a natural

waterway, and defendant cannot rightfully obstruct the flow and set the water back

upon the land of the plaintiffs. The open ditch in which the tile was laid had existed

from some more remote date, and afforded an outlet or means of escape for the

drainage of both farms. Defendant has both filled this ditch and stopped the tile,

thereby wholly preventing the flow from the dominant estate, except as the

obstructed waters may arise and overspread the surface. There is no sound theory

of law on which such action can be justified.”); Sobotka v. Salamah, No. 11-1634,

2013 WL 104794, at *4 (Iowa Ct. App. Jan. 9, 2013) (finding obstruction of the flow

of water). We affirm the district court’s order for injunctive relief in the form of

replacement of the tiles.

       Anticipating   a possible affirmance, Lex alternatively asks this court to

“amend the district court’s ruling to order [Countryman] to be required to maintain

said tiling, bear any future costs related thereto, including, but not limited to:

maintenance, repair, assessment, taxation, or any other monetary consequence

related thereto, pursuant to Iowa Code chapter 468.” The trust responds the issue
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“is not properly before this court nor is it ripe for decision.” We agree the issue

was not raised or decided and resolution of the issue is premature.

      AFFIRMED.
