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Kellen v. Pottebaum

Court of Appeals of Iowa

June 5, 2019

THOMAS KELLEN and JEROME KELLEN, Plaintiffs-Appellants,
v.
WAYNE POTTEBAUM and JEFF POTTEBAUM, Defendants-Appellees.

          Appeal from the Iowa District Court for Sioux County, Jeffrey A. Neary, Judge.

         Thomas and Jerome Kellen appeal the district court ruling denying their action for relief.

          Michael J. Jacobsma of Jacobsma Law Firm, P.C., Orange City, for appellants.

          Jeff 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.

          DOYLE, JUDGE.

         The 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 appeal.

         I. Sufficiency of the Evidence

         The 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. 2016).

         The 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 ...


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