Thill v. Mangers

                   IN THE COURT OF APPEALS OF IOWA

                                    No. 22-0197
                             Filed December 21, 2022


BETTY J. THILL, as Trustee of the BETTY J. THILL TRUST DATED
AUGUST 16, 2018 and BETTY J. THILL, Individually,
     Third-Party Plaintiffs-Appellees/Cross-Appellants,

vs.

DALE MANGERS,
     Third-Party Defendant-Appellant/Cross-Appellee.
________________________________________________________________


      Appeal    from   the    Iowa   District   Court   for   Dubuque   County,

John J. Bauercamper, Judge.




      Neighboring landowners appeal the dismissal of their trespass and

nuisance claims in this drainage dispute. AFFIRMED ON BOTH APPEALS.



      Darin S. Harmon and Jeremy N. Gallagher of Kintzinger, Harmon &

Konrardy, P.L.C., Dubuque, for appellant/cross-appellee.

      Todd J. Locher of Locher & Davis PLC, Farley, for appellees/cross-

appellants.




      Considered by Ahlers, P.J., and Badding and Chicchelly, JJ.
                                         2


BADDING, Judge.

      “[I]f your neighbor builds a berm, you build a higher berm.” So says Betty

Thill, who has been engaged in an escalating battle of berms with her neighbor,

Dale Mangers, for the past fifty years, which has spilled over to their other

neighbors, Edward and Susan Walz. In a lawsuit initiated by the Walzes, Thill1

and Mangers each asserted nuisance and trespass claims against the other. The

district court dismissed those claims, finding “a combination of many factors is

responsible for the water drainage problems” in the neighborhood.        Mangers

appeals, and Thill cross-appeals, from that ruling.

I.    Background Facts and Proceedings

      There have not been many beautiful days in this neighborhood.2 Betty Thill,

Dale Mangers, and Edward and Susan Walz own neighboring properties in a rural

area near Dubuque. The Walz property is separated from the Thill and Mangers

properties by a railroad that runs diagonally northwest to southeast—with the Thill

property directly across the railroad tracks from the Walz property. The Walz

property is northeast of the railroad, and the Thill and Mangers properties are

southwest. The Thill and Mangers properties are next to each other on the other

side of the railroad tracks, separated by a gravel subdivision-type road named

Johnson Lane. This gravel road is not maintained by the county, but it is repaired

by the neighbors who use it when flooding washes out the road. Both Thill and the

Walz family use this road to access their homes.



1 Thill was sued individually and as trustee of the Betty J. Thill Trust.
2 Adapted from “It’s a Beautiful Day in the Neighborhood,” written by Fred Rogers—
the theme song to the classic television show, Mr. Rogers’ Neighborhood.
                                        3


      The Mangers property is at a higher elevation than the Thill property. On

the west and southwest side of their properties, a county road called Massey

Station Road runs roughly parallel to the railroad tracks. Behind this road, there

are about twenty-five acres of woodland area, which is at a higher elevation than

the Mangers property. Water naturally flows downhill from the woodland area

toward the Thill and Mangers properties and Johnson Lane.




      To accommodate the flow of water, in the 1950s or 60s, Dubuque County

installed a forty-two-inch diameter culvert that crosses under Massey Station Road

near the Mangers property. Around the same time, a previous landowner in the

area raised the grade of Johnson Lane to create better sight distance along

Massey Station Road and installed two corrugated metal pipe culverts under the

lane. After the installation, the water would go into the Massey Station culvert,
                                         4


cross the corner of the Mangers property, and proceed through the Johnson Lane

culverts onto the Thill property. When this drainage system was first set up, the

Thill property was undeveloped land.

       That changed in 1972 when a spec home was built on the Thill property.

Mangers remembered that seventeen loads of material were trucked in to build the

home up higher than the surrounding ground. It was situated “right in the middle”

of what would have historically been the natural flow of water from the Mangers

property. This resulted in splitting the path of the water, with some going between

Thill’s home and Massey Station Road and the rest along Johnson Lane. Thill and

her late husband bought the spec home in 1976. Thill’s husband died in 2018, but

Thill still resides there.

       After a year of living in her home, Thill approached Mangers and told him

that “she didn’t think the water should be on her side” of Johnson Lane. Starting

around 1995, Thill and her late husband began blocking the culverts under

Johnson Road. They would place items like a bucket, metal stakes, rocks, and

debris in front of the culverts. Thill’s husband even put a porcelain tub in the

culvert, suggesting to Mangers that they “would take half of the water if [Mangers]

would take half the water.” Thill testified it was their goal to make one of the

culverts non-functional and divert the water over to Mangers’ side. But Thill said

that “Mangers wouldn’t take the water. He just kept shoving it all to us.”

       Mangers began to have problems with ponding, or “backing up,” of water

onto his property, which caused his ground to fill with silt and level off.     He

consulted with an attorney in 1995, who took pictures of the Massey and Johnson

Lane culverts as they were then. But Mangers did not pursue legal action against
                                            5


Thill because he did not have the funds to do so. Instead, he engaged in self-help

measures to restore the natural flow of water. Sometime between 2006 and 2011,

Mangers built an earthen berm and timber plank barricade along the south and

east of his property. His intent was to restore what had once been a depression

or swale, before it was leveled off by silt and ponding water, and direct the water

back toward the culverts and Thill’s property.

       Thill testified that this berm caused substantially more water to flow onto her

property. During significant rainfalls, Thill would “sometimes have as high as eight,

ten inches of muck in front of [her] two garages.” In the flood of 2008, her

basement flooded with six inches of water. That same event washed out Johnson

Lane enough to expose one of the culverts. The culvert had disintegrated so much

over the years that there was a hole at the top of it. Thill’s husband and a neighbor

filled the culvert with rock so the neighbor could cross the road to get to work. Thill,

who claims to own Johnson Lane, never replaced that culvert. And over the next

decade, she continued to place rocks and other debris in front of the remaining

culvert to divert water from her property. In doing so, the opening to the culvert

eventually became buried and covered by “grass and everything growing on the

downstream end of it.”

       In March 2020, Edward and Susan Walz brought a petition against Thill

claiming her actions in “blocking the culvert substantially altered the flow of water

from [her] dominant estate over and across [the Walzes’] servient estate, as well

as on Johnson Lane, the only point of access to and from the [Walz] property.”

They sought damages and injunctive relief requiring Thill to stop blocking the

culvert and return it to its original condition.
                                         6


       Thill answered the petition and filed a third-party petition against Dale

Mangers for trespass, nuisance, and injunctive relief. Thill claimed Mangers built

structures on his property that “concentrate[d] and diverte[d] water” from his

property onto hers “in an unnatural way.” She sought compensatory and punitive

damages, along with an order requiring Mangers to “restore the Thill Property to

the pre-existing condition prior to the trespass and nuisance [he] caused.” In his

answer to the third-party petition, Mangers asserted trespass and nuisance

counterclaims against Thill, claiming she “constructed barriers on her property

which both dams and diverts water from his property back on to Mangers’ property,

as well as down the road and washes out an access road used by many

neighbors,” including the Walzes.

       Following a bench trial, the district court issued a concise ruling that

dismissed all of the claims before it “because the evidence discloses that a

combination of many factors is responsible for the water drainage problems.”

Mangers appeals, and Thill cross-appeals; the Walz family does not appeal. For

his appeal, Mangers claims the district court “erred by not ordering Thill to repair

the drainage problems she created” with her “systematic blocking of the Johnson

Lane culverts,” which diverted the natural flow of water and “cast it back upon” his

property.   On cross-appeal, Thill only challenges the court’s dismissal of her

nuisance claim, arguing she met her burden to prove that the berm and barricade

Mangers built “redirected water to the Thill property.” As she did in district court,

Thill seeks injunctive relief, special and punitive damages, and attorney fees.
                                            7


II.    Standard of Review

       Because this case was tried in equity, our review is de novo. Iowa R. App.

P. 6.907; Perkins v. Madison Cnty. Livestock & Fair Ass’n, 

(Iowa 2000).

III.   Analysis

       At the heart of private nuisance claims3 like these “is the concept that

property owners must not unreasonably disturb or interfere with their neighbor’s

reasonable enjoyment       and   use   of       their property.”   Sojka   v.   Breck,

No. 12-1019, 

, at *3 (Iowa Ct. App. Apr. 10, 2013); accord 

(1) (2020) (defining a “nuisance” in part as “an obstruction to the free

use of property, so as essentially to interfere unreasonably with the comfortable

enjoyment of life or property”). One type of nuisance is the unlawful diversion of

water “from its natural course or state, to the injury or prejudice of others.” 

(4).

       As the above suggests, Iowa follows the “natural flow” doctrine:

       The general rule is that the dominant owner is entitled to drain
       surface water in a natural watercourse from his land over the servient
       owner’s land and if any damage results the servient owner is without
       remedy. This rule, however, is subject to qualification. We have
       many times held that if the volume of water is substantially increased
       or if the manner or method of drainage is substantially changed and
       actual damage results, the servient owner is entitled to relief.

3 We focus our analysis on the parties’ competing nuisance claims, although they
both also asserted claims for trespass against the other. We do so because
(1) Thill’s appeal is confined to challenging the dismissal of her nuisance claim and
(2) Mangers’ appeal mentions both claims but does not provide a separate analysis
for either, instead relying on the nuisance drainage law we have set forth in our
analysis. See Hyler v. Garner, 

 (Iowa 1996) (confining the
court’s consideration to issues raised on appeal); Richardson v. Neppl, 

 (Iowa 1970) (“A proposition neither assigned nor argued presents
no question and need not be considered by us on review.”).
                                            8



O’Tool v. Hathaway, 

 (Iowa 1990) (citation omitted). The

servient landowner, however, “may not interrupt or prevent the water’s natural flow

to the detriment of the dominant landowner.” Sojka, 

, at *4.

       Because the Mangers property sits at a higher elevation than the Thill

property, the parties agree he is the dominant estate owner.        See Maisel v.

Gelhaus, 

 (Iowa Ct. App. 1987) (“With regard to ordinary surface

waters, the relative elevation of the respective tracts determines which is the

dominant and which is the servient estate.”). From there, they each claim the other

has interfered with the natural flow of surface water across the Mangers property.

So the question is, how has surface water naturally flowed in the neighborhood?

See Ditch v. Hess, 

 (Iowa 1973) (considering historical flow

of surface water in examining drainage dispute).

       Turning to Thill’s cross-appeal first, she argues that Mangers violated his

obligations as a dominant estate owner with his berm and barricade, which she

contends “concentrated the flow of the storm water that discharged from the 42

inch culvert and diverted the storm water onto the Thill property further south

(uphill) on the Thill property than it flowed naturally.”

       In support of this argument, Thill relies on testimony from her expert

witness, Dennis Waugh. He concluded the original drainage path of the water from

the Massey Station culvert was over Johnson Lane to the northeast of Thill’s

driveway. That flow was changed, according to Waugh, when Mangers installed

his berm and barricade, which “diverted the outflow from the Massey Station

culvert directly to culvert pipes that had been previously placed under Johnson
                                          9


Lane” and across Thill’s driveway.       Mangers, however, had his own expert

witness—Patrick Norton—who disagreed with many of Waugh’s conclusions. On

our de novo review of the record, we find Norton’s conclusions should be afforded

more weight. See In re Marriage of Rosenfeld, 

 (Iowa Ct.

App. 1994) (giving expert testimony “the weight we consider it deserves after

considering, among other things, the expert’s education, experience, familiarity

with the case, reasons given for the opinion, and interest, if any, in the case”); see

also Sojka, 

, at *5–6 (discounting expert testimony that “rested

on incomplete or unreliable information”).

       Waugh testified that his report focused on the current condition of the

neighborhood because he “approached this as a design project in which case

nothing’s ever happened, nobody’s there to interview. Okay, what evidence do we

have to make decisions where the water’s going to go?” So in reaching his

conclusions, Waugh surveyed the properties and considered elevation data from

the Iowa Department of Natural Resources’ website collected in 2009—after the

Johnson Lane culverts were blocked and after he believed the berm had been

installed. He also talked to Thill for some historical background and considered

photographs she provided to him. But like the elevation data, those photographs

were all taken after the culverts were blocked.

       In contrast, Norton considered his task to “make an opinion as to the source

of the water, where the water was going, where it always had gone, what had

happened in the middle and, therefore, here today.” To do that, he reviewed

historical aerial photographs dating back to the 1930s, topographic maps from the

1950s showing historic drainage patterns, and photographs from Mangers taken
                                        10


in 1995—before the berm was built but after the culverts were obstructed. He also

conducted a site visit, reviewed Waugh’s report, and talked with Mangers and

another neighbor. From that historical review, Norton concluded

       that historically water flowed from the property on the opposite side
       of Massey Station . . . flowed through a culvert underneath Massey
       Station Road, crossed the corner of Mr. Mangers’ property through
       some culverts that had been systematically blocked over the course
       of many years.

       The photographs from 1995, which Waugh did not consider in his report,

were key to Norton’s conclusion.     Those photographs show the outlet of the

Massey Station culvert on Mangers’ property with a depression area sloping

toward Thill’s property and the inlets to the Johnson Lane culverts, which were

visible in the photographs. Norton testified the 1995 photographs prove that “the

natural flow of water [went] directly from the Massey Station culvert to the Johnson

Lane culverts.” As Norton logically questioned at trial, “Why else would they have

been blocked? Why would [someone] block a culvert . . . that doesn’t have water

flowing through it?” When Waugh viewed those photographs for the first time at

trial, he too agreed they showed that the natural flow of water in a normal rain

event would go to the Johnson Lane culverts. Yet he maintained based on his

survey calculations that the culverts were installed at too high of an elevation to

have ever been functional. But Waugh, according to Norton, failed to consider

years of erosion that could have taken place on the uphill side, which “would lower

the ground making the culvert stick up in the air,” and sediment deposits on the

downhill side.

       In the end, Norton concluded that Thill’s blocking of the Johnson Lane

culverts “would have began all of the problems. . . . [O]nce the culverts were
                                           11


blocked, the water that formerly flowed through those culverts was then forced to

flow along Johnson Lane and until it reached a . . . point where it would flow over.”

See Moody v. Van Wechel, 

 (Iowa 1987) (“Water from a

dominant estate must be allowed to flow in its natural course onto a servient estate.

The flow may not be diverted by obstructions erected or caused by either estate

holder.”). He believed the berm and barricade Mangers built was an attempt to

return to that natural flow pattern that Thill interrupted.

         On our de novo review of the record, we agree with the district court that

Thill did not prove that Mangers substantially changed the method or manner of

the natural water flow. See Garrison v. New Fashion Pork LLP, 

, 90

(Iowa 2022). As a result, her nuisance claim fails, as do her requests for injunctive

relief, special and punitive damages, and attorney fees.

         This leaves us with Mangers’ appeal, which is limited to the claim that the

district court “erred by not ordering Thill to repair the drainage problems she

created.” Thill argues this claim was not preserved because Mangers only sought

damages, not injunctive relief, for his trespass and nuisance counterclaims. We

agree.

         Mangers’ counterclaim pled two counts against Thill—one for trespass and

one for nuisance. For each, Mangers simply asked for judgment against Thill “for

property damage and diverting and damming water,” without a general equitable

prayer for relief. Cf. Jorge Constr. Co. v. Weigel Excavating & Grading Co., 

 (Iowa 1984) (noting a prayer for general equitable relief “often

will justify a court in granting relief beyond what is asked in specific prayers”). But

by trial, that requested relief had evolved into one for an order requiring Thill “to
                                           12


restore the culverts and restore the natural flow of water as it would otherwise have

been, namely, flowing across Dale Mangers’ property, through the culverts under

Johnson Lane and across Betty Thill’s property.” Mangers made this request for

injunctive relief during his testimony and in a post-trial brief.

       Thill did not object to Mangers’ change in remedy at trial, which would

normally allow us to treat his request for injunctive relief as if it had been raised in

the pleadings.      See Iowa R. Civ. P. 1.457 (“When issues not raised by the

pleadings are tried by express or implied consent of the parties, they shall be

treated in all respects as if they had been raised in the pleadings.”); Lee v.

State, 

, 679–80 (Iowa 2014) (“[P]arties may consent to try issues

beyond the scope of the pleadings.”). The problem, however, is that the district

court did not rule on Mangers’ request for injunctive relief. See Est. of Cawiezell

v. Coronelli, 

, 848 (Iowa 2021) (“In order for error to be preserved,

the issue must be both raised and decided by the district court.” (emphasis

added)). Instead, its decision was limited to the counterclaims Mangers pled—

trespass and nuisance—for which he only sought damages. Cf. Lee, 

 (considering plaintiff’s request for reinstatement to employment she had

been terminated from when the parties tried the issue by consent and the district

court ordered her reinstatement). We recognize the court rejected the Walzes’

request for injunctive relief against Thill, but they did not appeal that ruling. And

Mangers cannot do so in their place. See Kintzel v. Wheatland Mut. Ins. Ass’n, 

 (Iowa 1973) (noting we cannot consider errors affecting a non-

appealing party).
                                          13


       For these reasons, we conclude error was not preserved on Mangers’

request for injunctive relief. Because Mangers’ appeal was limited to that issue,

we affirm the dismissal of his trespass and nuisance claims.

IV.    Conclusion

       On our de novo review of the record, we find that Thill did not prove that

Mangers substantially changed the method or manner of the natural water flow.

So her nuisance claim fails, as do her requests for injunctive relief, special and

punitive damages, and attorney fees. As for Mangers’ trespass and nuisance

claims, we conclude he failed to preserve error on his request for injunctive relief—

the sole issue he raises on appeal. The district court’s ruling dismissing the parties’

claims is accordingly affirmed.

       AFFIRMED ON BOTH APPEALS.