
    Wm. Loveless, Appellant, v. Clark Ruffcorn et al., Appellees. (And one other case.)
    Drainage: levees: right therein of adjoining landowners: injunction. Long acquiescence in the existence of a levee constructed as part of a local drainage system is sufficient to confer substantial rights therein upon landowners protected thereby: as where a levee was constructed to protect the land on either side from. overflow water from the other side, and also for use as a highway, and had been so used and maintained for a period of fifty years. Held, that adjacent landowners were entitled to a permanent injunction restraining the cutting of the levee or the interfering with it in any manner; and further that the rights of the parties could not be affected by any ex parte action of the board of supervisors.
    
      Appeal from Harrison District Court. — Hon. N. W. Macy, Judge.
    Wednesday, June 30, 1909.
    Two cases were tried in the court below upon the same evidence. An appeal was taken in each case by the same appellant, and both appeals are presented here upon one record. Both cases involve the question of the right of appellant to cut a levee or embankment, which has been maintained for fifty years.. The levee in question constituted also the grade of a highway. In pursuance of permission, granted by the board of supervisors, the appellant cut the embankment, and placed a culvert therein at his own expense. The defendants in the first case, as township officers, immediately took out such culvert, and filled the opening. Thereupon the appellant, as plaintiff, brought an action for damages for the value of his labor and material, and this is the first case above entitled. Later Hitchcock and others, as adjacent prpp-. erty owners, brought an injunction suit against appellant, and asked that he be enjoined from again cutting the levee in question- Although the first action was at law, and the second in equity, they were both tried by agreement to the court without a jury upon the same evidence. There was a judgment dismissing the petition of appellant in the first case, and a decree of injunction against him in tibe second. As plaintiff in the first case, and as defendant in the second, he has appealed from each judgment.
    
    Affirmed.
    
      J. 8. Dewell, for appellant.
    
      Boadifer. & Arthur and Burke, & Tamesiea, for appellees.
   Evans, C. J.

The appellant is the owner of the S. E. % of section 12, and the N. E. ^4 of section 13, in, Morgan township, Harrison County. This is a part of a large tract of nearly level land lying between the Soldier River and the Missouri River. On that part of the tract lying next to the Soldier River there was a slight inclination in the surface of the ground south and east toward the Soldier River. On the westerly side of the tract there was a slight inclination south and west toward the Missouri River. The difference in elevation, however, was so slight that, prior to the construction of the levee in question, the overflow of either river alone would carry the surplus waters across the entire tract into the other river. We infer from the record that the conditions which would cause an overflow in one of these rivers would not necessarily cause an overflow in the other; the Soldier River being affected more, and the Missouri River less, by local weather conditions. Therefore it was deemed advisable, by the several owners of the land in the tract, to emphasize the “divide” between the two watersheds, and to keep the overflow of one from running into the other, and thus to confine the submergence of particular land to the times of overflow of one river only. In the spring of 1858 certain legal proceedings were had before the county judge of Harrison County, under a statute then in force providing for the construction of the levee in question for the general purpose above indicated. By such proceedings a highway was also established along the line of the levee in question; the embankment of the levee being also the traveled grade of • the highway. In pursuance of such proceedings the levee in question was constructed, and has always been known as the “Noyes Levee.” Its north end began at the north line of the land now owned by appellant, at some distance west of his northeast corner, and extended in á southerly direction, bearing slightly to the west for a distance of one mile and a quarter. Its southern terminus was therefore a quarter of a mile south of the' south line of the land now owned by appellant. The embankment was constructed to a height of two feet, and without any opening for its full length, and it has been so maintained for the fifty years. It. has always been effective for the purpose of its construction, and has always protected the land on either side from the overflow on the other. That it has always been accepted and acquiesced in by the several owners of the land contained in the tract is without substantial dispute. That such long acquiescence in such levee as a part of the drainage scheme of the locality is effective to confer rights upon landowners protected thereby is settled by our previous decisions: Geneser v. Healy, 124 Iowa, 310; Brown v. Armstrong, 127 Iowa, 175; Matteson v. Tucker, 131 Iowa, 511; Thiessen v. Claussen, 135 Iowa, 187. See, also, Railway Company v. Mossman, 90 Tenn. 157 (16 S. W. 64, 25 Am. St. Rep. 670). It is hardly necessary to add that the rights of the complaining parties in the equity case could not be terminated by the mere ex parte resolution of the board of supervisors. The decree in the equity case permanently enjoined the appellant from cutting the levee or interfering with it in any manner. This decree is in accord with the authorities above cited.

It is contended by appellant in the equity suit, that all that he now desires to do is to lay tile drains underground under the levee in question. He contends also that such tile drain would not have the effect to interfere with the effectiveness of the levee to separate the flood waters of the rivers. Whether the tile drain so laid would have the effect of transferring flood waters from one side to the other we have no occasion now to consider. From the evidence in this record it would be very difficult to reach a satisfactory conclusion. Appellant has no legal right to cut the levee, even temporarily, and thus endanger the property of his neighbors. He suggests no method, nor purpose on his part, to lay such tile without cutting the levee.

The decree as entered deprives the appellant of no legal right to which he is entitled. The question of the power' of the board of supervisors to establish a drainage district, and to adopt a new scheme of drainage, is not involved in either case, and is not affected by the decree entered. Our conclusion on this point is decisive of both cases. We, therefore, place our affirmance of both cases upon this ground, although there are other grounds upon which the judgment in the action at law would have to be affirmed.

The judgment and decree in both cases are affirmed.  