Written Drainage Easement Does Not Remove Uphill Landowner from all Downstream Liability

June 15, 2022 | Kitt Tovar Jensen

The case is McKee v. City of Council Bluffs, Iowa, No. 21-1117 (Iowa Ct. App. June 15, 2022).

On June 15, 2022, the Iowa Court of Appeals reversed a grant of summary judgment in a drainage dispute in favor of the City of Council Bluffs, the owner of the dominant estate. A couple alleged that improvements on the city property caused erosion and flood damage to the couple’s two servient properties. The court held that the express drainage easement only governed one property. Additionally, the statute of limitations did not bar the plaintiffs’ nuisance claim because the alleged offense was continuous rather permanent. Accordingly, the Court of Appeals reversed the district court’s grant of summary judgment in favor of the city and remanded the action for further proceedings.


A couple purchased property in Council Bluffs. South of the property, Simms Avenue runs east and west. In 1992, the couple sold the southern proportion of their property to a real estate developer to build a subdivision. The developer deeded “Lot 7” back to the couple to use as a right-of-way to access their home from Simms Avenue. That deed contained a written easement requiring “the owner and his or her assigns of of Lot 7” to install and maintain a drainage system on Lot 7.

That same year, the city made various improvements to Simms Avenue. Subsequently, excess water would flow downhill from Simms Avenue to Lot 7 and then onto the couple’s homestead during any significant rain event. In 1992 and 1993, the couple complained to the city alleging that these changes altered the drainage pattern and caused damage to their property. Each time, the city denied responsibility and instead asserted that the written easement governed the drainage on both of the couple’s properties.

In 2020, the couple brought this lawsuit against the city alleging that the subdivision improvements caused flooding damage. The couple brought a claim of nuisance and sought declaratory relief. The city moved for summary judgment and the district court found that the couple was responsible for maintaining the drainage on Lot 7 and their homestead. The district court also found that that alleged damage was a permanent nuisance and, thus, barred under the statute of limitations. Accordingly, the district court granted summary judgment in favor of the city. The couple appealed.

Responsibility for Drainage Easement Maintenance

The court first considered whether the express easement governed who was responsible for cleaning and maintaining the drainage on the homestead. The city argued that because it was not responsible for maintaining drainage on Lot 7, it was not responsible for the homestead.

Usually, the owners of the dominant estate are responsible for maintaining the easement. However, the district court found that the express easement placed the burden of maintenance on the owner of Lot 7. The Court of Appeals disagreed. Under the merger doctrine, when a servient and dominant estate are owned by the same party, any easements between the two properties are extinguished. See Gray v. Osborn, 739 N.W.2d 855, 862 (Iowa 2007). Here, the easement between Lot 7 and homestead was extinguished when the developer deeded Lot 7 back to the couple. Thus, Lot 7 could not be dominant to the homestead.

Because the couple was not responsible under the written easement, a genuine issue of material fact remained regarding who was responsible. Accordingly, the Court of Appeals concluded that the district court erred in granting the city’s motion for summary judgment.

Temporary v. Permanent Nuisances

The court next considered whether the alleged nuisance was permanent or temporary. A permanent nuisance is not abatable. The statute of limitations for a permanent nuisance begins to run at the time of the first injury. Conversely, if the alleged nuisance is temporary, but continuous, the statute of limitations begins on the date of most recent offense rather than the date of the first injury.

The Court of Appeals found that, viewing the evidence in the light most favorable to the plaintiffs, the damage due to erosion was continuous, abatable and not permanent. Witnesses for both the city and the couple testified that the current drainage system could be improved. Because evidence could establish that the nuisance claim was temporary, the district court improperly ruled on summary judgment that the action was time-barred.

Government Tort Immunity

Lastly, the city asserted it was immune from tort claims as a governmental subdivision. See Iowa Code § 670.4. A municipality is not liable for claims based on negligent design or construction as long as it was constructed “in accordance with a generally recognized engineering or safety standard, criteria, or design theory in existence at the time of construction or reconstruction.” Iowa Code § 670.4(1)(h). Although the city offered testimony that the improvements to Simms Avenue were constructed in compliance with the standards at the time, the couple’s expert testified that standard engineering practices were not followed during construction. Because genuine issues of material face existed, the Court of Appeals reversed the grant of summary judgment in favor of the city.