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(- Iowa, —, 201 N. W. 118.) without sympathy for plaintiff or Dams, 8 6 -- mill act --binding effect prejudice against defendant, is unob- of license on persons not parties to jectionable.

proceedings. Dams, § 6 right to dam back 8. That owners of property near, stream.

but not bordering on, a stream, were 4. A lower riparian owner cannot

not made parties to proceeding undam the stream and destroy the upper

der the mill act for construction of a owner's property by backwater.

dam, is not alone sufficient to show [See 27 R. C. L. 1101.]

that the millowner could not foresee Eminent domain, 8 94 — right to dam

that the omitted land would be affectbackwater effect on nonparties.

ed, and that, therefore, it was not nec5. The acquisition under the power

essary to make the owners parties to of eminent domain of the right to

the proceeding, so as to make the lierect a dam in a river gives no right

cense to construct the dam conclusive to injure land of persons not made

against their rights to compensation parties to the proceeding.

for injuries to the land by percolation

from the mill pond. Dams, $ 6 reasonableness of finding for license.

Dams, § 6 — when license for milldam 6. A finding as required by statute, bars action for resulting injury. before issuance of a license to con- 9. Under a statute providing that struct a dam, that it was reasonable

no proceeding for license to erect a and for public benefit, does not neces- milldam shall

action sarily show that the use of the dam

which could have been maintained in thereafter is reasonable as to neigh

the absence of the statute, unless the boring property flooded by it, and the owner of which was not a party to the

prosecution or action was actually proceeding.

foreseen and estimated upon the inTrial, 8 78 question for jury

quest, a license to erect a dam is not

reasonable use of stream.

a bar to an action for injury to prop7. The question of reasonable use

erty near the stream by water percoin the erection of a dam in a stream lating from the pond, unless the acis for the jury where there is evi- tion was actually foreseen and the dence bearing upon the question. damages estimated upon the inquest.

prevent

an

.

APPEAL by plaintiffs from a judgment of the District Court for Floyd County (Edwards, J.) in favor of defendant in an action brought to recover damages for injuries to real estate from overflow and percolation of water alleged to have been caused by its construction of a dam. Reversed. Statement by Preston, J.:

had for percolation. The jury, on Action at law to recover dam- the issues submitted, found for the ages for injury to real estate of the defendant. Plaintiffs appeal. plaintiffs, alleged to have been caused by overflow and percolation

Mr. J. C. Campbell, for appellants:

Defendant was liable for any damof water claimed to have been the

ages to plaintiff which resulted in result of impounding water by a

percolation or seepage from the backdam constructed by defendants.

water of the dam. Plaintiffs alleged injury to their

Fletcher v. Rylands, L. R. 1 Exch. lands caused by the erection of the 265, 1 Eng. Rul. Cas. 235 - Exch; dam. Defendant denied, in its Parker v. Larsen, 86 Cal. 236, 21 Am. pleadings, such injury, but there St. Rep. 30, 24 Pac. 989; Wilson v. was a stipulation as to the facts, or New Bedford, 108 Mass. 261, 11 Am. rather as we understand it, an

Rep. 352; Reed v. State, 108 N. Y. 407,

15 N. E. 735; Jenkins v. Hooper Irrig. agreed abstract, which will be re

Co. 13 Utah, 100, 44 Pac. 829; Pixley v. ferred to in the opinion. Trial to a

Clark, 35 N. Y. 520, 91 Am. Dec. 72. jury. The court, by its instructions,

Messrs. Edwards, Longley, Ransier, limited the jury to damages result- & Harris, for appellee: ing only from overflow, and in

One who rightfully impounds water structed that no recovery could be for use, as provided and authorized by law, even though it results in wa- height several feet above the old ter percolating through the soil onto dam; that by so doing the water the adjacent lands of another, is not overflowed and permanently perliable for the injury caused by said meated and saturated the premises percolation, unless it is shown as a

of plaintiffs, and rendered same unfact that the percolation is due to the defendant's negligence or to an un

fit for agricultural uses of any kind, reasonable use of his rights in the

and destroyed its market value to stream.

plaintiffs' damage in the sum of Moore v. Berlin Mills Co. 74 N. H. $1,625. 305, 11 L.R.A.(N.S.) 284, 124 Am. St. The answer admits that plaintiffs' Rep. 968, 67 Atl. 578, 13 Ann. Cas. land lies adjacent to the river, and 217; Scott v. Longwell, 139 Mich. 12, its ownership of the dam as alleged; 102'N. W. 230, 5 Ann. Cas. 679; Wil- denies all allegations not admitted. son v. Hanthorn, 72 Iowa, 451, 34 N.

Plaintiffs' land does not reach to, W. 203.

or touch, the river; the record does One is not liable for damages caused by the percolation or seepage

not show the distance from the rivof water which he has collected on

er, but it is stated in oral argument his own premises, unless the collec

that it is close, about 10 rods. The tion thereof is an unreasonable and character and height of the interunlawful use of his premises.

vening land does not appear, but the Quinn v. Chicago, B. & Q. R. Co. 63 inference is that it was somewhat Iowa, 510, 19 N. W. 336.

higher than plaintiffs' land, otherThe owner of an irrigation ditch wise plaintiffs' land would have lawfully opened and maintained is overflowed. The evidence tends to not liable for injury to the land of an

show that there was some slight other, caused by percolation, unless it is shown that there is some negli

overflow, but a recovery for this was

authorized by the instructions, had gence on the part of the ditch owner in building or maintaining said ditch.

the jury found as a fact that there Fleming v Lockwood, 36 Mont. 384, was overflow. There was some con14 L.R.A. (N.S.) 628, 122 Am. St. Rep. flict in the testimony, as to whether 375, 92 Pac. 962, 13 Ann. Cas. 263; plaintiffs' lands had been overHowell v. Big Horn Basin Coloniza- flowed. This is conceded. The levtion Co. 1 L.R.A. (N.S.) 596 and note; els are not given, but any difficulties 14 Wyo. 14, 81 Pac. 785; Bridgeford v. which plaintiffs would otherwise Colorado Fuel & I. Co. 63 Colo. 372, have had in proving that the per167 Pac. 963.

colation and injury to their lands Preston, J., delivered the opinion was caused by the added height of of the court:

the water, and elements of uncerPlaintiffs alleged that they are the tainty as to whether the wet condiabsolute owners in common of cer

tion of plaintiffs' land was caused, táin real estate described which lies in whole or in part, by percolation as adjacent and on the east side of Ce- a result of the damming of the river, dar river; defendant is engaged in or from natural sources, as rainfall, the business of manufacturing and natural drainage, porous soil, and transmitting electricity, and, during the like, are obviated by a concesthe time referred to, was the owner sion in reference thereto. There of a dam across the river, and other might be some diffi

Trial-question properties and water rights situat- culty in a jury de- for jury-damed on and along said river. Prior to termining or

or sep

ages cadsed by

defendant's act. 1917 an old dam had been main- arating the damage tained several years. During 1917,

caused by the defendant and other and prior thereto, defendant con- causes, but even so it was a quesstructed a new dam, which was com- tion for the jury as to such amount. plete April 1 of said year. After the The jury were so instructed. Vogt completion of the dam it caused the v. Grinnell, 133 Iowa, 363, 366, 110 water in the river above the dam to N. W. 603; Norfolk & W. R. Co. v. rise and remain permanently at a Amicon Fruit Co. 14 A.L.R. 547, (-Iowa, —, 201 N. W. 118.) 551 (C. C. A.) 269 Fed. 559. It fendant to construct said dam as does not appear, nor is it claimed, provided in chapter 1, title 9, of the that the seepage or percolation was Code, and as otherwise provided through any embankment surround- and required by law; that the eviing an artificial reservoir at which dence showed that very little of the water was maintained at a higher water overflowed on the land of level than the natural surface of plaintiffs on account of the construcplaintiffs' land. As said, the infer- tion of the new dam, but that the ence is that the intervening land volume of water was increased on was higher than plaintiffs.' The de- the property of plaintiffs by reason fendant did maintain a reservoir or of percolation and subterranean pond. It does not appear that there flowage from the Cedar river, such were any visible or known openings, percolation being also increased by passages, or courses through which reason of the raising of the dam, water was discharged upon plain and that the said water so gathered tiffs' land. Neither does it appear on the property of the plaintiffs by that there were some unknown sub- reason of percolation covered a terranean channels. It is not greater area than the normal supply claimed by defendant that it had ac- of water present on said premises quired any grant or rights from before the construction of said new plaintiffs or their grantors, or that dam.” plaintiffs were parties to any con- Instructions 3, 4, and 6 are comdemnation proceedings; on the con- plained of. No. 6 is a cautionary trary, the claim is that it had, by instruction, and within the discregrant or otherwise, secured an ease- tion of the court, to the effect that ment of flowage over all lands ex- the jury should decide the case on cept plaintiffs.

the evidence, and apply the law as We are not called upon in this case given in the instruc

-instructionto determine whether, in every case, tions without sym- general where there is percolation from one pathy for plaintiff tract of land to another, without any or prejudice against the defendant.. artificial raising or storage of wa- We think this objection is without ter, there is liability therefor. The substantial merit, and will be given question is clear cut, and narrowed no further consideration. to the one proposition, whether, un- Instruction 3 is, in part, as folder the record in this case and the lows: "Defendant has no right to conceded facts, the question should build an obstruction which causes have gone to the jury as to plain the water in the river to back up and tiffs' alleged injury by percolation stand on, or flow over, plaintiffs'

The agreed statement of facts is land, unless said right has been obthis: "Plaintiffs are the owners of tained by grant, express or implied, the land; defendant is a corporation from plaintiffs or their grantors. owning and operating a dam on the If you find from the evidence, and . Cedar river, at Nashua, Iowa. in the absence of any grant, that de

There had been an old dam at Nash- fendant's dam has caused the water ua for a number of years, but that in the river to back up and to stand a new dam was constructed by de- on, or to flow over the land described fendant some time before this suit in plaintiffs' petition, in a greater was instituted; and that the level amount or to a greater degree than of the water was raised at the point occurred before said dam was built, of the dam 7 feet. Defendant had, then the same constitutes an unlawby grant or otherwise, secured an ful act on the part of the defendant, easement of flowage of all lands, ex- and the defendant will be liable for cept the parcel owned by plaintiffs the damages, if any, due to said act. in this case on which the dam caused

The damages to which plainwater to be impounded, and that li- tiffs are entitled, if any, is the cense had been duly granted to de- amount of damages which will com

admonition.

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pensate them for the depreciation in defendant, over which the right of the market value, if any, of plain- flooding has been acquired by grant, tiffs' land, due to the act of the de- is a lawful exercise of defendant's fendant in causing water to stand rights, and is not an unlawful act. on or to flow upon plaintiffs' said “(4) The defendant is liable for land to a greater extent or to a the injury to the land in question, if greater degree than occurred before any, only so far as plaintiffs may said dam was built. And you must have proved, by a preponderance of distinguish between damages due to the evidence, that water backs from percolation and seepage, for which the dam directly onto the surface of defendant is not liable..

the land in question, and that deOn the question of damages the fendant is in no event to be held licourt gave instruction 4:

able for injury to land, if any, “The burden is upon plaintiffs to caused by percolation or seepage of establish by the preponderance of water from adjoining premises upevidence, etc., each of the follow- on which defendant has purchased ing propositions:

the right to overflow. The mainte'(a) That plaintiffs' land has nance of a mill pond in the river been damaged as claimed in the pe- by this defendant is also the exertition. As to the method of deter- cise of a lawful right, and is not an mining the fact as to whether or unlawful act. Therefore if you find not any damage at all has been done that any damage has been done to you will be instructed later.

plaintiffs' land on account of per“(b) That the damage so found, colation or seepage of water from if any, was due to the unlawful act land which the defendant had the or omission of the defendant. As right to flood, or, on account of perto what constitutes an unlawful act colation or seepage from defendor omission for which defendant is ant's mill pond, such damage must liable, you will be later instructed. be disregarded by you."

“(2) On the first proposition, Appellant cites Jenkins v. Hoopthat is, the determination of the er Irrig. Co. 13 Utah, 100, 44 Pac. amount of damage, if any, the 829; Reed v. State, 108 N. Y. 407, measure of damages to the land is 15 N. E. 735; Parker v. Larsen, 86 the difference, if any, in market Cal. 236, 21 Am. St. Rep. 30, 24 Pac. value, etc.

If, by the ap- 989; Fletcher v. Rylands, L. R. 1 plication of this rule, you find that Exch. 265, 1 Eng. Rul. Cas. 235– there has been a depreciation in Exch.; Wilson v. New Bedford, 108 market value, due to the unlawful Mass. 261, 11 Am. Rep. 352; and acts or omissions of defendant, then Pixley v. Clark, 35 N. Y. 520, 91 such depreciation is the measure. Am. Dec. 72. The Jenkins Case

. However, you must bear in mind was an action to recover damages to that the plaintiff is only entitled, as plaintiff's land in consequence of the damages, to that depreciation, if negligence of the defendant in conany, which is the legal consequence trol of their irrigation canal. The of an unlawful act or omission on Reed Case involved a question of the part of defendant toward this negligent construction of a reservoir plaintiff.

by the state which injured adjacent (3) As to what constitutes an land by the water percolating from unlawful act, etc. There is evidence the reservoir. Liability was predito the effect that some damage has cated, in part at least, because of a been done to plaintiffs' land by per- statute of the state making it liable colation or seepage of water into in all cases of damage occurring said land from other lands which from the use or management of the defendant had the right to flood, or canals of the state, or resulting or by percolation and seepage from de- arising from the

arising from the negligence or confendant's mill pond. You are in- duct of any officer of the state hav. structed that the flooding of land by ing charge thereof, etc. The court

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stream.

(- lowa, —, 201 N. W. 118.) held that the state was to be re- the correlative rights in the use by garded as occupying the same posi- the different owners of the water, tion as an individual. The negli and of their own property. We gence was in failing to render the shall see later that the correlative bed of the reservoir water-tight by rights of plaintiffs and adjacent not lining it. It was further held landowners to the use of the water that knowledge that the water would under plaintiffs' land are quite a difflood the land of claimant was im- ferent proposition from the use of material, since they must have defendant's property in such a way known that it would discharge upon as to injure plaintiffs' land by somebody's land and was liable to throwing back and increasing the inflict damage thereto.

water thereon, rather than taking it In the instant case we do not un- away. A dam below, throwing the derstand plaintiffs to bottom their water back onto plaintiffs, does not claim on negligence. Neither is involve the use of the water at all. there any evidence before us to show Upper and lower riparian owners that defendant's dam was improp had the right to the reasonable use erly constructed. The two cases of the water, but this does not aujust referred to are not directly in thorize the lower owner to dam the point, although some of the discus- stream and destroy, Damr-right to sion may tend to sustain appellant's the upper owners' dam back contention. There is this further property by backdifference, too, that neither of the water. Neither have upper owncases are under a dam statute such ers, ordinarily, the right to use all as we have in this state.

the water of the stream. This by In Parker v. Larsen, it was held way of illustration, as to the use that one having artesian wells up- of water under plaintiffs' land and on his land, and so using them that use of defendant's dam. The illusthe water therefrom forms in a pool tration may not be quite analogous and thence percolates beneath the to percolating water. surface so as to injure the lands of The cases, though there are not an adjacent proprietor, is answer- many of them directly to the point, able in damages for the injuries quite uniformly seem to make a thus occasioned. The court said clear distinction between so drainthat the defendant was not actuated ing or lessening the water on the by any malice or desire to injure land of one owner and damming it plaintiff, but it was done for the up and throwing the water back, purpose of fully utilizing the whole thus increasing the flow or amount. of his field in growing the crop of The cases will be cited later in the alfalfa,-a lawful purpose.

opinion. Presumably land near a The English rule is stated in river will drain towards the river. Fletcher v. Rylands, which is fol- By damming the river and raising lowed in Wilson v. New Bedford, the water, not only is the drainage and Pixley v. Clark. These cases are towards the river prevented, but addirectly in point and sustain appel- ditional water is forced back by lant's contention. It is so conceded pressure. The Wilson Case, 108 by appellee. The opinion in the Pix- Mass. 261, 11 Am. Rep. 352, refers ley Case is very long, and under the to a number of Massachusetts cases circumstances we shall not quote arising under mill acts, although therefrom at length. These cases, that particular case did not so arise. and particularly the Pixley Case, The cases were thought to be analohave been referred to and cited in gous. The Wilson Case follows the a great many cases, and the rule has Fletcher and Pixley Cases. In the been qualified somewhat, but mainly Wilson Case the court said: “In in cases where the question was in this commonwealth, complaints unregard to the lessening of the flow der our mill acts have for many or quantity of water and involving years presented cases quite similar

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