No Violation of Drainage Law Landowner For Improvements That Changed Flow of Surface Water

May 31, 2011 | Erin C. Herbold-Swalwell

Iowa Code §468.621 states that a landowner “may drain the land in the general course of natural drainage by constructing or reconstructing open or covered drains, discharging the drains in any natural watercourse or depression so the water will be carried into some other natural watercourse…”.  In addition, if the drainage is done solely upon the landowner’s property, the landowner is not liable for damages for the drainage unless it increases the quantity of water or changes the manner of discharge on the land of another.  In this case, a landowner claimed that his property had been damaged by the “diversion of excess surface water” from his neighbor’s property.  The neighbor was a gas pipeline company. 

The present dispute began nearly 30 years ago when the pipeline company constructed a system of terraces and tile lines to drain water into a drainage trench. The company secured an easement with the plaintiff to drain the water across the plaintiff’s property. Some years later, a breach developed in the company’s terrace system and the water began to flow onto another landowner’s property. The affected landowner notified the company of the breach and repairs were made to the existing terrace and tile system. The repairs consisted of a deepening of a retention pond and an increase in the level of the terrace berm. The repairs were approved by the County Engineer. The plaintiffs were never consulted as to the specifics of the repair plan. 

The repairs were made in 2008- a year when heavy rains fell in the area. The deepened retention pond overflowed into the existing drainage trench which also overflowed and twice flooded 5-6 acres of the plaintiffs land. The plaintiff sued the company for injunctive relief, $23,873 in erosion damages and $3400 for the reduction of rental value of the farm land in 2009 and 2010.  The trial court found that the plaintiff presented insufficient evidence that the company violated §468.621. The court held that the repairs made by the company “worked as planned” and followed the “natural” drainage course to the drainage trench.  

On appeal, the plaintiff argued that the dominant estate may not drain water onto a servient estate “by altering the natural and usual channels.” The Iowa Court of Appeals, while recognizing the plaintiff’s premise, held that “a servient estate must accept surface waters which drain thereon from a dominant estate.” The “natural flow” of water, here, was through the drainage trench running across the plaintiff’s property.  The repairs did not alter the natural drainage so substantially that it increased the burden on the servient estate. The appellate court went on to state that injunctive relief under §468 is “an extraordinary remedy that is granted with caution and only when required to avoid irreparable damage.” Thus, it appears that the only way to obtain an injunction in cases involving §468 is to introduce evidence of “irreparable damage” to the property.  Mullen v. Natural Gas Line Company of America, L.L.C., et al. v. Adams County, et al., No. 1-221/10-1604, 2011 Iowa App. LEXIS 343 (Iowa Ct. App., May 25, 2011).