from the Iowa District Court for Fremont County, Mark J.
landowner appeals the district court's denial of his
claims against the neighboring landowner's actions.
A. Roberts and Dawn M. Gibson of Simmons Perrine Moyer
Bergman P.L.C., Cedar Rapids, for appellant.
William Bracker of Law Office of Bill Bracker, Council
Bluffs, for appellees.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
Background Facts and Proceedings
subject of this dispute is a berm separating two parcels of
adjacent farm land. The plaintiff-appellant, Rick Mount,
owner of C&D Mount Farms Corp., purchased his land in
2005 and claims the berm on the adjoining property causes
water to pool on his land. Defendant-appellee, Roger Stooker,
owner of R&S Farms, Inc., purchased his land in 1990 but
has been farming the land since 1966. The berm sits on his
land, which lies to the west of Mount's property.
and Mount are included in the same watershed that drains from
southeast to northwest. Mount's land and the adjoining
land to the east drain into what was referred to during trial
as the "lateral" ditch across Mount's property.
That water continues to drain west into a north-south ditch
that runs between Mount's and Stooker's land, then
the water continues north to the east-west "road ditch,
" which borders both properties on the north.
Eventually, the water drains west into the Nishnabotna River.
fence, a ditch, and the disputed berm divide Stooker's
land from Mount's land to the east. In the late 1940s,
previous landowners agreed to dig the ditch to solve drainage
issues between the two properties. A north-south ditch was
dug on the property line, with the "spoils" dumped
onto the western (Stooker) property. The dirt was deposited
into "pyramids" but was eventually smoothed out to
form a berm. In the 1970s, when Stooker began to farm the
property, the berm was covered with grass. Eventually,
Stooker decided to farm on the berm, contributing to its
decrease in height. Additionally, floods in 1993, 1998, 2007,
and 2008 washed over the berm, reducing the height of the
berm even more. In 2013, to make up for some of the soil
loss, Stooker raised the berm a couple of feet. In 2014,
Stooker obtained a permit from the Iowa Department of Natural
Resources to further increase the height of the berm between
his and Mount's property.
sued Stooker, alleging Stooker, in "constructing"
the berm, raised the elevations of Stooker's land causing
excess water to flow onto or remain on Mount's parcel for
a longer period of time. Mount raised nuisance, trespass, and
breach of common law and statutory duty claims. Further,
Mount asked the court to enjoin Stooker from current and
future conduct elevating the height of the berm.
a two-day trial, the district court concluded Stooker did not
create a nuisance or trespass on Mount's property because
the level of flooding on Mount's land would be the same
whether the berm existed or not. Moreover, the district court
determined Stooker did not breach common law or statutory
duties because of a long existing easement for the berm and
because Mount had notice of the berm and altered water flow
based on his history of farming the area and familiarity with
the named parcels. Accordingly, the injunction was denied.
The district court allowed Stooker to maintain the berm and
build it to the height allowed by the permit.