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C&D Mount Farms Corp. v. R&S Farms, Inc.

Court of Appeals of Iowa

October 11, 2017

C&D MOUNT FARMS CORP., Plaintiff-Appellant,
v.
R&S FARMS, INC. and ROGER STOOKER, Defendants-Appellees.

         Appeal from the Iowa District Court for Fremont County, Mark J. Eveloff, Judge.

         A landowner appeals the district court's denial of his claims against the neighboring landowner's actions. AFFIRMED.

          Mark 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.

          VOGEL, Presiding Judge.

         I. Background Facts and Proceedings

         The 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.

         Stooker 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.

         A 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.

         Mount 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.

         Following 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.

         Mount appeals.

         II. ...


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