Experts Battle over an Alleged Water Nuisance

 

On December 5, 2018, the Iowa Court of Appeals issued a ruling regarding a private nuisance dispute between two neighbors. The court held that a ditch running between two neighbors had not changed substantially because of the addition of a culvert.

Background

In 1973, a landowner purchased the property on which she now lives. In 2000, the landowner purchased another adjacent tract of land from a third party. The landowner’s neighbor purchased the adjoining property in 2003. The landowner testified that a four-foot-wide ditch ran from her driveway onto the neighbor’s property.

The third party changed the ditch on the neighboring land in 2000 by filing in a portion of the ditch and grading in a driveway. The potion of the ditch in dispute contains a culvert to direct water. After the neighbor purchased the property, the landowner began to complain of water backing up onto her property. The landowner asked the neighbor to lower the culvert; however, the neighbor claimed the water flowed adequately. The landowner claimed that since the third party had filled in a portion of the ditch in 2000, her land was wet and she couldn’t mow. Finally, in November 2016, the landowner filed a “petition to abate nuisance and for damages, alleging the neighbors (or their predecessors) constructed and maintained a nuisance that obstructs a natural waterway resulting in devaluation and diminishment of the landowner’s property.

Expert Witnesses

Both parties hired expert witnesses to testify as to the cause of wetness. The landowner’s expert testified the culvert under the neighbor’s driveway, as well as the neighbor’s retention pond, caused water to backup into the landowner’s property. While the expert testimony stated that installation of the culvert caused sediment to collect, historical data showed the course of the waterway had not been altered since the 1930’s.

The neighbor offered evidence of proper water flow under the culvert and into the retention pond. The neighbor’s expert witness testified that the wet area was higher than the neighbor’s retention pond. He also testified to less water uptake in the area due to removal of several large trees. The removal of trees exasperated water retention in an area historically classified as wetlands. Additionally, the expert testified that poor maintenance of the drainage ditch was part of the problem.

Nuisance and Expert Witness Credibility

A private nuisance is an unlawful interference with the use and enjoyment of land. A citizen may bring a private suit to stop a nuisance and recover damages. In a nuisance case, the plaintiff must show that the defendant created a nuisance which caused damages to the plaintiff.

After a bench trial, the district court dismissed the landowner’s petition, finding that the landowner had failed to prove a nuisance.On appeal, the Iowa Court of Appeals agreed with the lower court. It found the wetland was created by a historical existence of a natural spring, the removal of trees, and the landowners lack of maintenance rather than the placement of the culvert.

This case is a classic “battle of the experts.” In this type of situation, the appellate court will defer to the lower court because it had the opportunity to hear the expert witnesses and review their credibility. 

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