#### C. J. Dorr, Appellant, v. L. F. Simmerson, Appellee.

Construction of tile drain: dominant estate: rights of owner. The owner, of a dominant estate may construct a tile 'drain in a natural water course or an artificial ditch, which ”has been acquiesced in for the statutory period, to carry the water from his own land onto and over the land of another unless the quantity of water conducted thereby has been materially . and' unduly increased to the damage of the servient estate.

*Appeal from WrigM District*Gowrt.— HoN. W. D. EvaNS, J udge.

Thursday, June 8, 1905.

ActioN to recover damages to plaintiffs’ property Jue to the diversion of surface water thereon, and to restrain defendant from maintaining the ditches' and drains whereby it is alleged he unlawfully collected and discharged the water upon plaintiff’s land. Trial to the court, decree dismissing plaintiff’s petition, and he appeals.

*Affirmed.*

*Birdsall & Birdsall*and *Peterson & Humphrey,*for appellant.

*Nagle &*Nagle, for appellee.

Deemer, J.

Plaintiff is the owner of the southwest *552quarter, and defendant the owner of the northwest quarter, of section 3 in a certain township in Wright county. Upon defendant’s land are three ponds, the natural outlet to which was a ditch or swale running in a southwesterly direction onto the east half of section 4. When this ditch or swale reached the southeast quarter of section 4 it turned in a southeasterly direction, and ran down over the southwest comer of plaintiff’s land! Between sections 3 and 4, and immediately west of the land owned by plaintiff and defendant, there is a highway running north and south. The natural drainage of the ponds on defendant’s land, to which we have referred, and of the surface water on defendant’s land, was southwesterly upon and onto the east half of section 4, and from section 4 southeasterly across and over plaintiff’s land. Á considerable part of plainitff’s land drained southwesterly into the ditch coming from the east half of section 4. About twenty years ago the highway of which we have spoken was improved, and a ditch was cut on either side thereof, which carried the water coming from defendant’s land down to where the ditch or swale again crossed the highway as it came from the east half of section 4. And about fifteen years ago an open ditch was cut through the ponds on defendant’s land down to the highway ditch on the east side of the highway. See *Dorr v. Simerson,*73 Iowa, 89. In the years 1901 and 1902 defendant laid tiles in this ditch from the ponds to the highway, cutting the ditch a little deeper than it had been, in order to receive the tiles, but draining no other ponds than those which had theretofore been drained by the open ditch. Plaintiff claims that the defendant thus increased the flow of water upon his (plaintiff’s) land, damaging his crops and otherwise injuring him, while defendant insists that the damage, if any, received by plaintiff, was due to excessive rainfall during the years 1902 and 1903-, and not to any act of his. Defendant also denies that he in any manner increased the flow of water upon plaintiff’s • land; that he changed its natural course, or threw it upon plaintiff’s land in any other *553manner than it would have gone in tbe natural way. He admits that be put in tbe drain tile, but contends tbat, as be laid it’in tbe natural water course, be is not liable for any consequential injuries resulting therefrom.

Tbe right of a landowner to place tiles in' swales or ditches to carry tbe water from ponds upon and onto lower lands crossed by these swales has already been recognized by this court. *Wharton v. Stevens,*84 Iowa, 107. Such a right- is necessary, in this country, in order tbat low and swampy lands may be reclaimed, and a denial thereof would be productive of incalculable mischief. In *Vannest v. Fleming,*79 Iowa, 638, it is said: '“The owner of tbe dominant estate has tbe right to conduct the water falling upon bis land, by means of underground tile drains, with tbe channel provided b]y nature for tbe drainage of bis land, and through such channel to cast it upon tbe lower or servient estate.” As the original ditch in tbe instant case and tbe ditches alqng tbe highway were constructed 'more than ten years ago, and tbe right of tbe defendant and of tbe county to tbe use thereof has been unchallenged and unmolested ever since, -they each acquired a prescriptive right to tbe use thereof; and, as tbe tile drain constructed by the defendant did no more than accelerate the flow of tbe water which bad theretofore gone over the same course, there is no liability, unless it be shown that the quantity of water thrown upon plaintiffs land was materially and unduly increased, to plaintiff’s damage. See *Vannest v. Fleming, supra; Resser v. Davis,*100 Iowa, 745; *Schrope v. Township,*111 Iowa, 113. See, also, *Anderson v. Henderson,*124 Ill. 170 (16 N. E. 232), which is a very instructive case on this proposition.

Going to the record in the present case, we are com strained to hold that the defendant did nothing for which he should be held liable. He placed his drain in the natural water course, or perhaps in an artificial one, which had been so long established as that plaintiff must he deemed to have acquiesced therein; and while he, perhaps, to some extent *554accelerated the flow of the water, be did not unduly increase it, nor did be cast upon the plaintiff more than would naturally have gone upon bis land, bad there been no tile drain. In view of known conditions in this State, we are quite ready to bold that the owner of the dominant estate has the right, by ditches or drains, to drain bis own land into the natural and usual channels which nature has provided, even though the quantity of water cast upon the servient estate may be somewhat increased. Such a rule seems indispensable to the proper reclamation of land, and is no more than good neighborship requires. Of course, the owner of the higher land cannot open or remove natural barriers, and compel the owner of the lower to receive water which would not otherwise have gone in that direction. But in order that all tillable land may be reclaimed, it is indispensable that we recognize the right of the higher proprietor to construct drains, either open or closed, to conduct the water upon his own land into the natural and usual channels which nature has provided, or which have been established by agreement or acquiescence of the parties. This may be a slight step in advance of any we have heretofore taken, but it is a rule well recognized by authority, and especially demanded by our circumstances and conditions. See authorities cited in 30 Am. & Eng. Enc. of Law (2d Ed.) pages 337, 338. This rule is now established by statute in this State. See chapter 70, page 75, Acts 30th General Assembly. True, this statute was passed after this action was commenced, but it announces, as we think, the law which theretofore existed in this commonwealth. Moreover, it is now the law whereby the case should be determined, and, as we think, always has been. However, if this be not true, plaintiff has failed to show any material increase in the flow of water upon his land, due to the construction of the tile drain.

The decree of the trial court is correct, and it is *affirmed.*