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Brockman v. Ruby

Court of Appeals of Iowa

December 5, 2018

LAVON M. BROCKMAN, Plaintiff-Appellant,
v.
GLEN R. RUBY and LORI A. RUBY, Defendants-Appellees.

          Appeal from the Iowa District Court for Pottawattamie County, Kathleen A. Kilnoski, Judge.

         LaVon Brockman appeals the dismissal of her equitable action to abate a private nuisance and establish a drainage easement.

          Lloyd R. Bergantzel, Council Bluffs, for appellant.

          Bradford L. Davis, Council Bluffs, for appellees.

          Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.

          MULLINS, JUDGE.

         LaVon Brockman appeals the dismissal of her equitable action to abate a private nuisance and establish a drainage easement. She contends the district court erred in concluding a circumstance on adjoining land owned by Glen and Lori Ruby does not amount to a nuisance and the court failed to consider the easement issue. Both parties request an award of appellate attorney fees. The Rubys request an additional award of expert-witness fees incurred in the district court proceedings.

         I. Background Facts and Proceedings

         Upon our de novo review of the record, we make the following factual findings. This case involves a dispute between Brockman and her neighbors to the east, the Rubys. In 1973, Brockman and her husband[1] purchased the property on which Brockman now lives.[2] In 2000, the Brockmans purchased an additional adjoining tract of land that was owned by Mr. Pursell. When the Brockmans purchased land from Pursell in 2000, Pursell also owned the adjoining land that is now owned by the Rubys. The Rubys purchased their current property in 2003.[3]

         According to Brockman's testimony, her property contained a four-foot-wide ditch running from her driveway to the east property line, and then the ditch continued onto what is now the Ruby property. Brockman testified that, in 1973, the ditch was fifteen to twenty feet deep in the area by her driveway but was only four or five feet deep in the area near the property line. Brockman testified the dimensions of the ditch remained constant from 1973 until around 2000, when Pursell "changed the driveway" on his property. Pursell apparently filled in a portion of the ditch and built a driveway on top of it. However, this portion of the ditch already contained a drainage culvert. The record is unclear as to whether Pursell made any modifications to the culvert when he installed the new driveway. Brockman testified she did not know if anything was done to the culvert but acknowledged Pursell "would have put in a tube similar to or maybe that same tube that runs under the Rubys' driveway."

         Shortly after the Rubys purchased their property in 2003, Brockman and her husband complained about the culvert underneath the Rubys' driveway being too small and causing water to back up on the Brockman property. The Brockmans asked the Rubys to lower the culvert. Mr. Ruby responded that water was flowing through the culvert adequately. Mr. Ruby has never noticed any water backing up on the Brockman property from his culvert. No evidence was presented that the area flowing into or out of the Ruby culvert has ever flooded or overflowed such that it would spill over onto the Brockman property. Over the years, Mr. Brockman and Mr. Ruby engaged in several conversations about the culvert under the Rubys' driveway. Brockman testified that, since Pursell changed the driveway on the east property, the ditch on her property started "filling in." Brockman claims the driveway reconstruction is the cause of her nuisance complaints-that her property is sometimes "wet" and she "cannot mow" because her mower "gets stuck in the mud."

         However, Brockman did not mow the "wet" spots on her property in the past because, until at least 1998, those areas were occupied by trees. The Brockmans consented to removal of those trees sometime between 1998 and 2002. Furthermore, the wet spots on Brockman's property are located in the lowest point of the property, and all of the runoff from her property and other higher areas around that property gravitates to the area where the wet spots are located. With that runoff comes silt, which settles into the ditch and low corner of Brockman's property. Brockman has never engaged in measures to maintain the integrity of the ditch on her property, such as clean it out, remove vegetation, or install a tile. The Brockman property includes a natural spring near the complained-of wetland. Sometimes the spring is wet, sometimes it is dry.

         Brockman's expert, a general contractor of several years with experience in installing and supervising the installation of culverts, testified to his opinion that the placement of the culvert under the Ruby driveway and the level of the Rubys' connected retention pond causes a backflow of water onto the Brockman property. However, he also testified Brockman's ditch has collected sediment from erosion and that the inflow of sediment from erosion in these "old country ditches" is constant and usual. He also testified to his belief that when Pursell modified the driveway on the east property, he moved the culvert further north, which prevented the sediment from properly flowing from the Brockman ditch. However, historical mapping data indisputably shows that the course of the waterway has not been altered since at least the 1930s.

         Mr. Ruby took several videos of the complained-of wetland area. The footage shows water from the Brockman property properly flows through the culvert under the Ruby driveway, into the adjacent retention pond, and over the spillway on the other side of the pond. The Rubys' expert has bachelor's and master's degrees in civil engineering and specializes in water resources in environmental engineering and hydrology. A 2017 wetland assessment of the Brockman property conducted by the Rubys' expert found the complained-of wet area had an elevation of 1109.8 feet, while the Rubys' retention pond had a lower elevation of 1106.7 feet. Due to the difference in elevation, the expert testified the retention pond could not be the cause of the moist conditions on the Brockman property. Upon his assessment, the expert "determined that the wetland areas on the [Brockman] property are a direct result of the adjacent groundwater spring-fed stream, and that said wetlands have been present on the [Brockman] property dating back to the 1930's." The expert also determined the removal of "several large trees" on the Brockman property, "documented to be more than 70-years old, has significantly reduced the groundwater uptake occurring in th[e] east wetland area, therefore resulting in more ...


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