Kundel Farms v. Vir-Jo Farms, Inc.
467 N.W.2d 291, 1991 Iowa App. LEXIS 2, 1991 WL 35713 (1991)
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Rule of Law:
A fence is a 'partition fence' subject to a fenceviewer's jurisdiction only if it is located on the boundary line between two adjoining properties owned by different parties. Additionally, a riparian owner's natural use of water, such as for watering livestock, takes precedence over an artificial use, such as creating a wetland for recreational hunting, and an upstream owner cannot substantially diminish the water flow for such an artificial purpose.
Facts:
- Kundel Farms (Kundel) and Yir-Jo Farms (Vir-Jo) own adjoining tracts of land.
- A 55-rod section of fence existed entirely on Kundel's property; it had previously been a boundary fence before Kundel purchased the adjoining parcel, placing the fence wholly within its new, larger property.
- Vir-Jo requested that Kundel repair this fence to contain Vir-Jo's cattle, but Kundel refused.
- Subsequently, some of Vir-Jo's cattle passed through the dilapidated fence and damaged Kundel's corn.
- Separately, Kundel modified a dam on a creek that flowed from its property onto Vir-Jo's land.
- Kundel replaced a 36-inch culvert at creek bed level with two smaller culverts (15 or 18 inches) placed significantly above the creek bed.
- This alteration created a pond on Kundel's property, which Kundel rented to hunters, but it substantially diminished the natural water flow to Vir-Jo's property.
- Vir-Jo used the water from the creek for a 'natural' use: watering livestock.
Procedural Posture:
- At Vir-Jo's request, the Lake Township Fenceviewers issued an order compelling Kundel to maintain a portion of a fence.
- Kundel appealed the fenceviewers' order to the district court.
- Vir-Jo filed a separate equity action against Kundel in the same district court concerning obstruction of waterflow.
- The district court consolidated the cases and appointed a special master to review them.
- The special master's report found that the fenceviewers' order was void and that Kundel's alteration of the embankment did not substantially harm Vir-Jo.
- After both parties objected, the district court rejected the master's conclusion on the fence, ruling the fenceviewers' order was valid, but adopted the master's conclusion on the waterflow issue.
- Kundel, as appellant, appealed the district court's ruling on the fence, and Vir-Jo, as cross-appellant, appealed the ruling on the waterflow to the Iowa Court of Appeals.
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Issue:
Under Iowa law, does a fence located entirely on one landowner's property, and not on the boundary line, constitute a 'partition fence' giving township fenceviewers jurisdiction to compel its maintenance, and may an upstream riparian owner alter a dam for an artificial use in a way that substantially diminishes water flow to a downstream owner's natural use?
Opinions:
Majority - Hayden, J.
No. A fence located wholly on one owner's property that does not serve as a boundary with an adjoining property is not a partition fence, and fenceviewers lack jurisdiction over it. Further, an upstream owner's artificial use of water cannot substantially diminish the flow to the detriment of a downstream owner's natural use. The court reasoned that a 'partition fence,' by statutory and common law definition, is a fence on the line between two properties. Iowa Code § 113.17, which applies the rules to a fence 'wholly upon one side of the division line,' only covers fences intended to be boundary fences but built slightly off the true line; it does not apply to a fence with no relation to the boundary. Regarding the water dispute, the court applied the established hierarchy of riparian rights, classifying Vir-Jo's use for watering livestock as 'natural' and Kundel's creation of a wetland for paid hunting as 'artificial.' Because natural uses take precedence, Kundel's alteration of the dam, which substantially diminished the flow for an artificial purpose to the prejudice of Vir-Jo's natural use, was impermissible.
Analysis:
This decision clarifies the jurisdictional limits of township fenceviewers by narrowly defining a 'partition fence' based on its location relative to the property boundary, preventing the law from being used to compel maintenance of internal fences. It also strongly reaffirms the common law doctrine of riparian rights, establishing a clear hierarchy between competing water uses. The ruling solidifies the principle that natural, agricultural water needs are superior to artificial, recreational, or commercial uses, providing a guiding precedent for resolving water disputes between adjoining rural landowners.
