Fennema v. Menninga

A public highway runs east and west on the county line between Jasper county on the north and Marion county on the south. The highway separates Section 36 in Jasper county and Section 1 in Marion county. Plaintiff is the owner of a forty-acre tract in Section 36 bordering the highway and defendant is the owner of the land across the road in Section 1. Plaintiff brought suit against the defendant alleging that for many years a natural drain or waterway ran across Section 36 and over defendant's land in a southeasterly direction but for more than five years the defendant has erected and maintained a dike along the north side of his land which stopped the flow of surface water and caused frequent flooding of plaintiff's land. The prayer was for an injunction against the maintenance of the dike and judgment for $800 damages resulting from the flooding of plaintiff's land. Defendant's answer alleged that the dike had been constructed more than twenty-two years prior to the filing of the petition and it had been erected and maintained through the express or implied consent of the plaintiff and his grantors. He stated in his answer: