from the Iowa District Court for Sioux County, Jeffrey A.
and Jerome Kellen appeal the district court ruling denying
their action for relief.
Michael J. Jacobsma of Jacobsma Law Firm, P.C., Orange City,
W. Wright and Jacob V. Kline of Heidman Law Firm, P.L.L.C.,
Sioux City, for appellees.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
present action concerns a dispute over surface water
involving adjacent property owners. Thomas and Jerome Kellen
filed a petition in equity alleging that a relief pipe
installed on the property of Wayne and Jeff Pottebaum in
December 2014 led to an unnatural flow of water onto their
property, which damaged their farmland. They sought monetary
damages and an order requiring removal of the relief pipe.
The Pottebaums filed a counterclaim, alleging the
Kellens' acts or inaction with regard to the flow of the
surface water caused damage to the Pottebaums. After trial,
the district court determined neither party had established
their claims and dismissed each with prejudice. The Kellens
Sufficiency of the Evidence
Kellens contend they proved their claims against the
Pottebaums by a preponderance of the evidence. The matter was
tried in equity although the district court ruled on some
objections and took offers of proof on others. We employ a de
novo review. See Iowa R. App. P. 6.907.
But, a de novo review "does not mean [the appellate
courts] decide the case in a vacuum, or approach it as though
the trial court had never been involved."
Davis-Eisenhart Mktg. Co. v. Baysden, 539 N.W.2d
140, 142 (Iowa 1995). Rather, even in a de novo appellate
review, "great weight" is accorded the findings of
the trial court where the testimony is conflicting. See
id. (citation omitted). This is because the trial court
is in a far better position to weigh the credibility of
witnesses than the appellate court. See id.; Birusingh v.
Knox, 418 N.W.2d 80, 82 (Iowa Ct. App.1987). Unlike this
court, the trial court has a front row seat to observe the
"witness's facial expressions, vocal intonation, eye
movement, gestures, posture, body language, and courtroom
conduct, both on and off the stand," as well as the
witness's "nonverbal leakage" demonstrating
"[h]idden attitudes, feelings, and opinions" that
are not reflected in the cold transcript this court reviews.
Thomas Sannito & Peter J. McGovern, Courtroom
Psychology for Trial Lawyers 1 (1985). Consequently, the
trial judge is in the best position to assess witnesses'
interest in the trial, their motive, candor, bias, and
prejudice. See State v. Teager, 222 Iowa 391, 269
N.W. 348, 351 (1936).
Albert v. Conger, 886 N.W.2d 877, 880 (Iowa Ct. App.
legal principles at play are well settled:
[T]he owner of the dominant estate has a legal or natural
easement in the servient estate for the drainage of surface
waters. The natural flow of water cannot be interrupted by
the servient owner so as to cause injury to the state of the
dominant owner. Though the landowner may divert water by
surface drainage onto the servient estate even though an
additional amount of water may therefore enter the servient
estate, it has been duly recognized that the dominant owner
may not discharge such water so as to do substantial damage
to the servient estate.
Maisel v. Gelhaus, 416 N.W.2d 81, 85 (Iowa Ct. App.
1987) (internal citations omitted). It is undisputed that the
Pottebaums own the dominant estate and the Kellens own the
servient estate. Therefore, the Kellens are entitled to
relief if they proved the installation of the relief pipe
substantially increased the volume of water flowing onto
their land or substantially changed the manner or method of
drainage and actual damage ...