#### The City of Waverly v. S. H. Page, *et al.,*Appellants.

Waters: injunctions: *Municipal Corporations.*A city, which, in accordance with Acts Nineteenth General Assembly, chapter 89, section 3, and Code, 1873, section 527, has made substantial improvements of a permanent character to keep open the natural outlet for surface water flowing through a water course, may maintain an action to enjoin the obstruction of such water course by the owners of the land through which it runs, although it is dry at all times except in cases of melting snow or unusually heavy rains, at which times water flows into it only a few days at a time, *226where such diversion or obstruction may entail serious conse. quenees on the city or the people interested in the drained territory.

*Appeal from Bremer District Court.*— Hon. P. W. Burr, Judge.

Saturday, April 9, 1898.

Action in equity to restrain the defendants from filling or obstructing a water course within the corporate limits of the plaintiff. There was a hearing on the merits, and decree for the plaintiff. The defendants *appeal*—

Affirmed.

*G. W. Ruddick*for appellants.

*A. M. Potter*and *Gibson & Dawson*for appellee.

Bobinson, J.

— The plaintiff is a city of the second class, organized and existing under the laws of this state. It includes territory on both sides of Cedar river, and is intersected from east to west by an important street, known as “Bremer Avenue.” Through the central portion of that part of the territory west of the river extends a water course known as “Dry Bun.” It crosses Bremer avenue near, and east of, Aspen street, which extends from north to south, intersecting the avenue. The run has two branches, which drain about one thousand five hundred acres of land, and unite within the city limits at a considerable distance northwest of the crossing at the avenue. - Penn street is parallel to, and about one hundred and forty rods north of it; and between the two, extending from east to west, are five other streets. The run crosses Penn street, and the distance from that crossing along’ the run, to the river into which it empties is three hundred and sixty-six rods, and the fall is about twenty-four *227feet. The general course of the run from Penn street to the river, although irregular, is southward near Aspen street to the avenue; thence in a southeasterly direction to the river. From Penn street southward for a distance of forty-two rods, the water course is discernible, but does not have well-defined banks. The banks are more prominent further south, and from a point forty-two rods north of the avenue to the avenue are reasonably well-defined, although not sufficiently abrupt to prevent the cultivation of the ground by ordinary methods, and the running of a mowing machine over it. One half of the bed of the run from the avenue to Penn street has been cultivated, and the larger part of that which has not been cultivated is covered with sod. The banks south of the avenue are well defined, and gradually increase in height towards the river. The water course for a distance of fifty rods from the river is from eight to ten rods wide, and its .banks are from ten to fifteen feet iri height. The defendants own several lots at the intersection of the avenue and Aspen street, which are bounded on the south by the avenue, and on the west by Aspen street, and over which the water course extends. The lots are one hundred and ten feet wide from the east to west, and one hundred and thirty-two feet long; and the defendants have commenced to raise their surface about two and one-half feet, in order to erect thereon a dwelling house, and, if permitted to do so, will fill the water course. The effect of that would be to dam water which, if unobstructed, would flow over the bed of the run, and turn it onto lots and streets in the vicinity; and, if the street and other lots were so graded as to prevent that effect, a dam would be formed, which in times of high water would cause the overflow of a large portion of the city north of the *228avenue, to the great injury of the numerous inhabitants of that territory.

The plaintiff contends that Dry run is a water course, of which it has control, and which it has controlled for many years; that the water course should-have been kept open, for the purpose of draining the territory through which it extends; -and that., should it be obstructed permanently, great and irreparable injury would result to- the city, a® well as to its inhabitants-. The defendants -admit that-there is a slight depression in that part o-f the city designated as “Dry Run,” but deny that it -ever had any defined channel or 'banks as -a water course, or that any water ever flows through it, excepting the surface water from unusual rainfalls, or -other extraordinary cause®, and that in -such cases- the flow i-s for but a few hours at a time; and they ins-i-st that they have a right to- fill the depression in- their lots in. the manner -described. They contend that the water which would flow north of the avenu-e could readily be turned along the streets and alley® -eastward into- the river, and that it is the right and the duty o-f the plaintiff to make provision- for disposing of water from the territory specified, in that manner. There is no-t a -constant flow of water through the water course in question. On the contrary, it is dry, -excepting in case of melting snow or -of unusually heavy rainfall; and on such occasions water flow® into it but a few -days at a time-. It sometimes happens- that when an exceptionally large quantity of water lias fallen tire water course is not sufficiently large to carry off to the river the water 'as fast as it accumulates, and t.h,at lot® and -streets in its vicinity are overflowed. The plaintiff has for many years assumed control of the run. It ha® provided artificial channels at some places, and ha® -erected numerous- bridge® over it, at a great *229expense. In the avenue south oí the lots of the defendant are two foot bridges and one wagon bridge. A walled channel has been made, which commences at the avenue, and extends southward. It is sixteen feet wide and four feet deep, and is of about sufficient capacity to carry off the water which flows from north of the avenue in times of ordinary high water.

There are authorities which hold that depressions in the surface of the earth, through which water flows only in times of high water, are not water courses, ivithin the meaning of the law which forbids the obstruction of Avaiter courses; and, within the rule of ,sucli authorities, Dry run, north of Bremer aiunue, is not a Avater course, and any proprietor might laAvfnlly obstruct the flow of water therein over his- premises. See *Hoyt v. City of*Hudson, 27 Wis. 656; *Gibbs v. Williams,*25 Kan. 214. The appellant also cites the cases of *City of Cedar Falls v. Hansen,*104 Iowa, 189, and *Knostman & P. F. Co. v. City of Davenport,*99 Iowa, 589, in support of the same doctrine. In the former of these two eases it appeared that the defendant owned three lots, in Avhich there was a depression which furnished an outlet for surface Avater from a pond. The pond was filled, but surface water at times flowed from the same territory through the depression. The city improved the street near the lots, and in so doing made a ditch along one side of two of the lots, and turned it onto the third lot, SO' that water from the ditch passed into the depression on that lot. The defendant had placed a house over the depression, and was about to fill the lot 10’ the level of the street, and 'thus make a permanent obstacle to the flow of water in. the depression; and AA’e held that he had the right to do so-. That conclusion was based upon the rule that a city may bring its streets to. grade; that by doing so, it may turn surface water from its natural course, and owners of lots below *230grade cannot complain, ’because of their light to protect themselves by bringing their lots to grade. The fact was also mentioned that the city had changed the course through which water naturally flowed over two of the lots of 'the defendant. It was said, in effect, that, in view of the power of the city to make the changes it did without liability, the defendant should be permitted to 'bring his lot to grade, even though by so doing he obstructed the natural water way. In the *City of Davenport Case*the plaintiff sought to hold the city liable for alleged negligence in failing to provide adequate means, for carrying off surface water. What was said in the two cases respecting the right of a lot owner to. bring his lot to grade must he considered with the facts to which the statements made were applied. The characteristics of the depression considered in the *City of Cedar Falls Case*were somewhat like those of that part of Dry run north of Bremer avenue; but, so far as w-e are advised, the course which the city had pursued towards it, and the effect of obstructing it, were wholly unlike the course pursued by the city, and the effect to. 'be apprehended from the proposed obstruction, in this case. The plaintiff had for many years followed the plan of. keeping Dry run open for the dis>charge of surface water which should be gathered from the territory it drained north of Bremer avenue. An outlet for that water was a great and pressing necessity, and- to maintain such an outlet the plaintiff made substantial and expensive improvements, of a permanent character, to keep open the natural outlet. What it did in that respect was authorized in -section 3 of chapter 89 of the Acts of the Nineteenth General Assembly, which gave to cities the power “to. deepen, widen, cover, wall, alter or change the channel of water courses within their corporate limits,” and by section 527 of the Code o-f 1873, which provided that “the city *231council shall have the care, supervision, and control of all public highways, 'bridges, streets, alleys, public square® and commons within the city, and shall cause the same to be kept open and in repair. * * * *” In the case of *Wharton v. Stevens,*84 Iowa, 107, the proprietor of a farm claimed the right to- obstruct the flow of surface water from an adjoining farm through a natural depression in the surface of the land; but we held that the right did not exist, and, in speaking of -surface water, said: “When such water flows, by -a well-defined and natural course, upon lower lands, that flow cannot be interfered with by either the upper or lower proprietor. But when such water has no defined course, but spreads out over the land without a well-defined course, it may be turned by the landowner in' -any direction. But where surface water has a fixed and certain course, as a swale, though it may be narrow or broad, its flow cannot be interrupted, to .the injury of an adjoining proprietor.” See, also, *Willitts v. Railway Co.,*88 Iowa, 281; *Earl v. De Hart,*12 N. J. Eq. 283; *Lambert v. Alcorn,*(Ill. Sup.), 33 N. E. Rep. 53. The rule announced in the case of *Wharton v. Stevens*is applicable in this case. The obstruction of Dry run in 'the manner proposed by the defendants is unauthorized-, and would be followed by consequences too serious to the plaintiff and the people interested in the territory drained 'by the run to- be permitted. The decree of the district court appear® to -be right, and it is affirmed.