ROBERTA R. COUNTRYMAN, TRUSTEE OF THE RONALD W. WOODBURY GENERATION SKIPPING TRUST, Plaintiff-Appellee,
CHARLES B. LEX, Defendant-Appellant.
from the Iowa District Court for Webster County, William C.
B. Lex appeals from a district court order requiring him to
replace obstructed drainage tile located beneath his land
preventing water from flowing off a neighboring property and
under his property.
B. Howie and James R. Hinchliff of Shindler, Anderson,
Goplerud & Weese, P.C., West Des Moines, for appellant.
L. Kramer of Johnson, Kramer, Mulholland, Cochrane &
Cochrane, P.L.C., Fort Dodge, for appellee.
by Vaitheswaran, P.J., and Tabor and Bower, JJ.
VAITHESWARAN, PRESIDING JUDGE
appeal arises from a dispute over obstructed drainage tile
running beneath the ground from one landowner's farm
field to a field of the neighboring landowner.
Roberta R. Countryman, trustee of the Ronald W. Woodbury
Generation Skipping Trust, which owned one of the fields,
sued Charles B. Lex, owner of the other field. Countryman
alleged Lex "permitted trees . . . to grow over the
private tile on [the trust's] land with the result that
the roots of the trees . . . entered and obstructed the
private tile, preventing it from carrying drainage waters
from [the trust's] land to the county tile."
Countryman sought injunctive relief and damages for crop
losses and diminished land value. Following trial, the
district court ordered Lex to "replace the obstructed
tile with new, 12-inch plastic, corrugated, non-porous
tile." The court also ordered damages for crop losses.
contends the district court should not have found an easement
"on subsurface tiling from the trust property onto [his]
property." In his view, Countryman failed to prove an
easement by: (1) express grant or reservation, (2)
prescription, (3) necessity, or (4) implication. Countryman
counters that the trust had a statutory and common law
"right to drain its land via subsurface drainage tile
across Lex's land to the county's main drain."
Countryman implies the right arises independently of the four
types of easements enumerated by Lex. We agree with
Code section 468.621 (2017) authorizes "[o]wners of
land" to "drain the land in the general course of
natural drainage by constructing or reconstructing open or
covered drains, discharging the drains in any natural
watercourse or depression so the water will be carried into
some other natural watercourse." The provision has
survived in largely the same form for more than a century.
See, e.g., Schlader v. Strever, 138 N.W. 1105, 1107
(Iowa 1912) ("[P]rominence is to be given the recent
statute, [Iowa] Code Supp. § 1989a53, which provides
that owners of land may drain the same by the construction of
open or covered drains discharging the same into any natural
water course or into any natural depression whereby the water
will be carried into some natural water course . . .
."); Valentine v. Widman, 135 N.W. 599, 600
(Iowa 1912) (quoting Iowa Code section 1989a53, which stated:
"Owners of land may drain the same in the general course
of natural drainage, by constructing open or covered drains,
discharging the same into any natural water course, or into
any natural depression, whereby the water will be carried
into some natural water course . . . ."). As construed,
the statute affords "[a]n upper landowner . . . the
right to construct a drain in order to carry water from his
land in its natural and usual course onto and over the land
of another unless [the] quantity of water thrown upon the
other's land is materially and unduly increased to his
damage." Cundiff v. Kopseiker, 61 N.W.2d 443,
445 (Iowa 1953). The upper landowner or "dominant estate
has the right to discharge water upon" the lower
landowner or "servient estate whether such water is
surface water or from a natural water course, either open or
tiled." Id. at 446. In determining the dominant
estate holder and the servient estate holder, the
"general movement of flood waters is not
determinative." Downey v. Phelps, 208 N.W. 499,
502 (Iowa 1926). Each is determined "largely by the
elevations of the lands." Id.; see also Moody v. Van
Wechel, 402 N.W.2d 752, 757 (Iowa 1987); Ctr. For
Transp. Research & Educ., Iowa State Univ., Iowa Drainage
Law Manual 78 (2005),
l_April_2005.pdf. These principles derive from the statute
and opinions construing the statute as well as a common law
easement for natural water courses. See McKeon v.
Brammer, 29 N.W.2d 518, 527 (Iowa 1947) (discussing
various types of common-law easements but stating, "In
any event, [the predecessor to Iowa Code section 468.621]
provides that owners of land 'may drain the same in the
general course of natural drainage by constructing open or
covered drains'" and "it seems that the rule
under the statute now is that the upper proprietor may drain
his land through natural watercourses in a way to increase
the water that is to flow over the servient land, providing
the increase is not too great or in such unnatural quantities
'as to be the cause of substantial injury'");
Maben v. Olson, 175 N.W. 512, 513 (Iowa
1919) ("[T]he right to drain into a natural water course
is an easement appurtenant to the lands, and that all must
take notice of the fact that the drainage may throw more
water into that natural outlet.").
the statute as construed, there is little dispute the trust
property was at a higher elevation than Lex's property
and the general course of natural drainage was from the
southern portion of the trust property through the Lex
property. A Webster County supervisor testified, "It was
pretty obvious just standing at the road that there's a
hill there." He noted the water "would have to go
to the south" and, of necessity, cross Lex's
property to the county drain. He stated there was "no
way possible" the water could drain through an alternate
drainage system to the north. One of the individuals who
farmed the trust's land seconded this opinion. He
testified the property was situated uphill from Lex's
farmland, and water could not drain to the north because
"[t]he water won't run uphill." Even Lex agreed
some of the trust's land was at a higher elevation than
his. Although he noted a portion of both properties were
"at approximately the same level," he did not
seriously dispute the overall elevations.
the land elevation was essentially undisputed, so too was the
existence of a tile line beneath the properties.
Countryman's husband testified the clay tile had
"been there for a long time" and preexisted the
trust. Another witness pegged construction of the line to at
least the 1970s, based on the clay composition of the tiles.
Although Lex was unaware of the line when he obtained his
land twenty-two years before trial, he confirmed its
existence with the county engineer and referred to part of
the line as "my tile."
those key facts established, the only remaining factual
question was whether Lex obstructed the tile line to prevent
the natural flow of water.
The general principle of law is 'that the owner of the
upper or dominant estate has a legal and natural easement in
the lower or servient estate for the drainage of surface
waters, that the natural flow or passage of the waters cannot
be interrupted or prevented by the servient owner to the
detriment or injury of the dominant proprietor . . . and that
the owner of the dominant estate may cast an additional
quantity of surface water upon ...