Dams, § 6- mill act binding effect of license on persons not parties to proceedings.

8. That owners of property near, but not bordering on, a stream, were not made parties to a proceeding under the mill act for construction of a dam, is not alone sufficient to show that the millowner could not foresee that the omitted land would be affected, and that, therefore, it was not necessary to make the owners parties to the proceeding, so as to make the license to construct the dam conclusive against their rights to compensation for injuries to the land by percolation from the mill pond.

Dams, § 6 when license for milldam bars action for resulting injury.

9. Under a statute providing that no proceeding for license to erect a milldam shall prevent an action which could have been maintained in the absence of the statute, unless the prosecution or action was actually foreseen and estimated upon the inquest, a license to erect a dam is not a bar to an action for injury to property near the stream by water percolating from the pond, unless the action was actually foreseen and the damages estimated upon the inquest.

Action at law to recover damages for injury to real estate of the plaintiffs, alleged to have been caused by overflow and percolation of water claimed to have been the result of impounding water by a dam constructed by defendants. Plaintiffs alleged injury to their lands caused by the erection of the dam. Defendant denied, in its pleadings, such injury, but there was a stipulation as to the facts, or rather as we understand it, an agreed abstract, which will be referred to in the opinion. Trial to a jury. The court, by its instructions, limited the jury to damages resulting only from overflow, and instructed that no recovery could be

had for percolation. The jury, on the issues submitted, found for the defendant. Plaintiffs appeal.

Mr. J. C. Campbell, for appellants: Defendant was liable for any damages to plaintiff which resulted in percolation or seepage from the backwater of the dam.

Exch;

Fletcher v. Rylands, L. R. 1 Exch. 265, 1 Eng. Rul. Cas. 235 Parker v. Larsen, 86 Cal. 236, 21 Am. St. Rep. 30, 24 Pac. 989; Wilson v. New Bedford, 108 Mass. 261, 11 Am. Rep. 352; Reed v. State, 108 N. Y. 407, 15 N. E. 735; Jenkins v. Hooper Irrig. Co. 13 Utah, 100, 44 Pac. 829; Pixley v. Clark, 35 N. Y. 520, 91 Am. Dec. 72.

Messrs. Edwards, Longley, Ransier, & Harris, for appellee:

One who rightfully impounds water for use, as provided and authorized

by law, even though it results in water percolating through the soil onto the adjacent lands of another, is not liable for the injury caused by said percolation, unless it is shown as a fact that the percolation is due to the defendant's negligence or to an unreasonable use of his rights in the stream.

Moore v. Berlin Mills Co. 74 N. H. 305, 11 L.R.A. (N.S.) 284, 124 Am. St. Rep. 968, 67 Atl. 578, 13 Ann. Cas. 217; Scott v. Longwell, 139 Mich. 12, 102 N. W. 230, 5 Ann. Cas. 679; Wilson v. Hanthorn, 72 Iowa, 451, 34 N. W. 203.

One is not liable for damages caused by the percolation or seepage of water which he has collected on his own premises, unless the collection thereof is an unreasonable and unlawful use of his premises.

Quinn v. Chicago, B. & Q. R. Co. 63 Iowa, 510, 19 N. W. 336.

The owner of an irrigation ditch lawfully opened and maintained is not liable for injury to the land of another, caused by percolation, unless it is shown that there is some negligence on the part of the ditch owner in building or maintaining said ditch.

Fleming v Lockwood, 36 Mont. 384, 14 L.R.A. (N.S.) 628, 122 Am. St. Rep. 375, 92 Pac. 962, 13 Ann. Cas. 263; Howell v. Big Horn Basin Colonization Co. 1 L.R.A. (N.S.) 596 and note; 14 Wyo. 14, 81 Pac. 785; Bridgeford v. Colorado Fuel & I. Co. 63 Colo. 372, 167 Pac. 963.

Preston, J., delivered the opinion of the court:

Plaintiffs alleged that they are the absolute owners in common of certain real estate described which lies adjacent and on the east side of Cedar river; defendant is engaged in the business of manufacturing and transmitting electricity, and, during the time referred to, was the owner of a dam across the river, and other properties and water rights situated on and along said river. Prior to 1917 an old dam had been maintained several years. During 1917, and prior thereto, defendant constructed a new dam, which was complete April 1 of said year. After the completion of the dam it caused the water in the river above the dam to rise and remain permanently at a

height several feet above the old dam; that by so doing the water overflowed and permanently permeated and saturated the premises of plaintiffs, and rendered same unfit for agricultural uses of any kind, and destroyed its market value to plaintiffs' damage in the sum of $1,625.

The answer admits that plaintiffs' land lies adjacent to the river, and its ownership of the dam as alleged; denies all allegations not admitted.

Plaintiffs' land does not reach to, or touch, the river; the record does not show the distance from the river, but it is stated in oral argument that it is close, about 10 rods. The character and height of the intervening land does not appear, but the inference is that it was somewhat higher than plaintiffs' land, otherwise plaintiffs' land would have overflowed. The evidence tends to show that there was some slight overflow, but a recovery for this was authorized by the instructions, had the jury found as a fact that there was overflow. There was some conflict in the testimony, as to whether plaintiffs' lands had been overflowed. This is conceded. The levels are not given, but any difficulties which plaintiffs would otherwise have had in proving that the percolation and injury to their lands was caused by the added height of the water, and elements of uncertainty as to whether the wet condition of plaintiffs' land was caused, in whole or in part, by percolation as a result of the damming of the river, or from natural sources, as rainfall, natural drainage, porous soil, and the like, are obviated by a concession in reference thereto. There might be some difficulty in a jury de- for jury-damtermining or sep- defendant's act. ages caused by arating the damage caused by the defendant and other causes, but even so it was a question for the jury as to such amount. The jury were so instructed. Vogt v. Grinnell, 133 Iowa, 363, 366, 110 N. W. 603; Norfolk & W. R. Co. v. Amicon Fruit Co. 14 A.L.R. 547,

Trial-question

551 (C. C. A.) 269 Fed. 559. It does not appear, nor is it claimed, that the seepage or percolation was through any embankment surrounding an artificial reservoir at which water was maintained at a higher level than the natural surface of plaintiffs' land. As said, the inference is that the intervening land was higher than plaintiffs.' The defendant did maintain a reservoir or pond. It does not appear that there were any visible or known openings, passages, or courses through which water was discharged upon plaintiffs' land. Neither does it appear that there were some unknown subterranean channels. It is not claimed by defendant that it had acquired any grant or rights from plaintiffs or their grantors, or that plaintiffs were parties to any condemnation proceedings; on the contrary, the claim is that it had, by grant or otherwise, secured an easement of flowage over all lands except plaintiffs.'

We are not called upon in this case to determine whether, in every case, where there is percolation from one tract of land to another, without any artificial raising or storage of water, there is liability therefor. The question is clear cut, and narrowed to the one proposition, whether, under the record in this case and the conceded facts, the question should have gone to the jury as to plaintiffs' alleged injury by percolation.

The agreed statement of facts is this: "Plaintiffs are the owners of the land; defendant is a corporation owning and operating a dam on the . Cedar river, at Nashua, Iowa. There had been an old dam at Nashua for a number of years, but that a new dam was constructed by defendant some time before this suit was instituted; and that the level of the water was raised at the point of the dam 7 feet. Defendant had, by grant or otherwise, secured an easement of flowage of all lands, except the parcel owned by plaintiffs in this case on which the dam caused water to be impounded, and that license had been duly granted to de

fendant to construct said dam as provided in chapter 1, title 9, of the Code, and as otherwise provided and required by law; that the evidence showed that very little of the water overflowed on the land of plaintiffs on account of the construction of the new dam, but that the volume of water was increased on the property of plaintiffs by reason of percolation and subterranean flowage from the Cedar river, such percolation being also increased by reason of the raising of the dam, and that the said water so gathered on the property of the plaintiffs by reason of percolation covered a greater area than the normal supply of water present on said premises before the construction of said new dam."

Instructions 3, 4, and 6 are complained of. No. 6 is a cautionary instruction, and within the discretion of the court, to the effect that the jury should decide the case on the evidence, and apply the law as given in the instruc- -instructiontions without sym- general pathy for plaintiff

admonition.

or prejudice against the defendant. We think this objection is without substantial merit, and will be given no further consideration.

Instruction 3 is, in part, as follows: "Defendant has no right to build an obstruction which causes the water in the river to back up and stand on, or flow over, plaintiffs' land, unless said right has been obtained by grant, express or implied, from plaintiffs or their grantors. If you find from the evidence, and in the absence of any grant, that defendant's dam has caused the water in the river to back up and to stand on, or to flow over the land described in plaintiffs' petition, in a greater amount or to a greater degree than occurred before said dam was built, then the same constitutes an unlawful act on the part of the defendant, and the defendant will be liable for the damages, if any, due to said act.

The damages to which plaintiffs are entitled, if any, is the amount of damages which will com

pensate them for the depreciation in the market value, if any, of plaintiffs' land, due to the act of the defendant in causing water to stand on or to flow upon plaintiffs' said land to a greater extent or to a greater degree than occurred before said dam was built. And you must distinguish between damages due to percolation and seepage, for which defendant is not liable.

On the question of damages the court gave instruction 4:

"The burden is upon plaintiffs to establish by the preponderance of evidence, etc., each of the following propositions:

"(a) That plaintiffs' land has been damaged as claimed in the petition. As to the method of determining the fact as to whether or not any damage at all has been done you will be instructed later.

As

"(b) That the damage so found, if any, was due to the unlawful act or omission of the defendant. to what constitutes an unlawful act or omission for which defendant is liable, you will be later instructed.

"(2) On the first proposition, that is, the determination of the amount of damage, if any, the measure of damages to the land is the difference, if any, in market value, etc. If, by the application of this rule, you find that there has been a depreciation in market value, due to the unlawful acts or omissions of defendant, then such depreciation is the measure. However, you must bear in mind that the plaintiff is only entitled, as damages, to that depreciation, if any, which is the legal consequence of an unlawful act or omission on the part of defendant toward this plaintiff.

"(3) As to what constitutes an unlawful act, etc. There is evidence to the effect that some damage has been done to plaintiffs' land by percolation or seepage of water into said land from other lands which defendant had the right to flood, or by percolation and seepage from defendant's mill pond. You are instructed that the flooding of land by

defendant, over which the right of flooding has been acquired by grant, is a lawful exercise of defendant's rights, and is not an unlawful act.

"(4) The defendant is liable for the injury to the land in question, if any, only so far as plaintiffs may have proved, by a preponderance of the evidence, that water backs from the dam directly onto the surface of the land in question, and that defendant is in no event to be held liable for injury to land, if any, caused by percolation or seepage of water from adjoining premises upon which defendant has purchased the right to overflow. The maintenance of a mill pond in the river by this defendant is also the exercise of a lawful right, and is not an unlawful act. Therefore if you find that any damage has been done to plaintiffs' land on account of percolation or seepage of water from land which the defendant had the right to flood, or, on account of percolation or seepage from defendant's mill pond, such damage must be disregarded by you."

Appellant cites Jenkins v. Hooper Irrig. Co. 13 Utah, 100, 44 Pac. 829; Reed v. State, 108 N. Y. 407, 15 N. E. 735; Parker v. Larsen, 86 Cal. 236, 21 Am. St. Rep. 30, 24 Pac. 989; Fletcher v. Rylands, L. R. 1 Exch. 265, 1 Eng. Rul. Cas. 235Exch.; Wilson v. New Bedford, 108 Mass. 261, 11 Am. Rep. 352; and Pixley v. Clark, 35 N. Y. 520, 91 Am. Dec. 72. The Jenkins Case was an action to recover damages to plaintiff's land in consequence of the negligence of the defendant in control of their irrigation canal. The Reed Case involved a question of negligent construction of a reservoir by the state which injured adjacent land by the water percolating from the reservoir. Liability was predicated, in part at least, because of a statute of the state making it liable in all cases of damage occurring from the use or management of the canals of the state, or resulting or arising from the negligence or conduct of any officer of the state having charge thereof, etc. The court

held that the state was to be regarded as occupying the same position as an individual. The negligence was in failing to render the bed of the reservoir water-tight by not lining it. It was further held that knowledge that the water would flood the land of claimant was immaterial, since they must have known that it would discharge upon somebody's land and was liable to inflict damage thereto.

In the instant case we do not understand plaintiffs to bottom their claim on negligence. Neither is there any evidence before us to show that defendant's dam was improp erly constructed. The two cases just referred to are not directly in point, although some of the discussion may tend to sustain appellant's contention. There is this further difference, too, that neither of the cases are under a dam statute such as we have in this state.

In Parker v. Larsen, it was held that one having artesian wells upon his land, and so using them that the water therefrom forms in a pool and thence percolates beneath the surface so as to injure the lands of an adjacent proprietor, is answerable in damages for the injuries thus occasioned. The court said that the defendant was not actuated by any malice or desire to injure plaintiff, but it was done for the purpose of fully utilizing the whole of his field in growing the crop of alfalfa,—a lawful purpose.

The English rule is stated in Fletcher v. Rylands, which is followed in Wilson v. New Bedford, and Pixley v. Clark. These cases are directly in point and sustain appellant's contention. It is so conceded by appellee. The opinion in the Pixley Case is very long, and under the circumstances we shall not quote therefrom at length. These cases, and particularly the Pixley Case, have been referred to and cited in a great many cases, and the rule has been qualified somewhat, but mainly in cases where the question was in regard to the lessening of the flow or quantity of water and involving

We

the correlative rights in the use by the different owners of the water, and of their own property. shall see later that the correlative rights of plaintiffs and adjacent landowners to the use of the water under plaintiffs' land are quite a different proposition from the use of defendant's property in such a way as to injure plaintiffs' land by throwing back and increasing the water thereon, rather than taking it away. A dam below, throwing the water back onto plaintiffs, does not involve the use of the water at all. Upper and lower riparian owners had the right to the reasonable use of the water, but this does not authorize the lower owner to dam the stream and destroy Dams-right to the upper owners' dam back property by back- stream.

water. Neither have upper owners, ordinarily, the right to use all the water of the stream. This by way of illustration, as to the use of water under plaintiffs' land and use of defendant's dam. The illustration may not be quite analogous to percolating water.

The cases, though there are not many of them directly to the point, quite uniformly seem to make a clear distinction between so draining or lessening the water on the land of one owner and damming it up and throwing the water back, thus increasing the flow or amount. The cases will be cited later in the opinion. Presumably land near a river will drain towards the river. By damming the river and raising the water, not only is the drainage towards the river prevented, but additional water is forced back by pressure. The Wilson Case, 108 Mass. 261, 11 Am. Rep. 352, refers to a number of Massachusetts cases arising under mill acts, although that particular case did not so arise. The cases were thought to be analogous. The Wilson Case follows the Fletcher and Pixley Cases. In the Wilson Case the court said: "In this commonwealth, complaints under our mill acts have for many years presented cases quite similar