What is a Pond?

According to the Iowa Court of Appeals, a pond is "a body of water," and a contractor's building "a pond that does not hold water," amounted to nothing more than the construction of a dam.

Via Kevin Underhill's Lowering The Bar, I learned about this story of a recent Iowa Court of Appeals decision holding that a contractor's agreement to construct a pond left the construction company liable when the pond ultimately failed to hold water due to "a porous layer of shale" on the sides of the pond. Additional coverage of the case is available here. A direct link to download a pdf version of the opinion is available here.

The construction company, Reilly, argued that it had abided by the terms of its contract to produce a pond. But the court held that the waterless pond violated Reilly's express warranty of the quality of product it would provide to its customer, Bachelder:

Reilly does not quibble with Bachelder’s testimony that Reilly told him he could “do a pond” at the staked location on Bachelder’s property. In his testimony, Reilly agreed he intended the pond would hold at least enough water so that the tires placed on the bottom for fish habitat would be covered up. By definition, a pond is “a body of water.” See American Heritage College Dictionary 1062 (3d ed. 1993); see also Iowa Code §§ 455B.171(39) (defining “water of the state” as including ponds), 462A.2(15) (defining farm pond as “a body of water”). When Reilly agreed to construct a pond on Bachelder’s property, he was expressly warranting the pond would hold water. Otherwise, Reilly would have simply been constructing a dam, without any anticipation it would capture water to form a pond. (Footnote omitted)

  In the wake of this opinion it appears that a pond without water is not a pond at all under Iowa law.