Atchison, T. & S. F. R. Co. v. Long

• Decision Date: 06 June 1891
• Citation: 27 P. 182,46 Kan. 701
• Parties: ATCHISON, T. & S. F. R. Co. et al. v. LONG.[1]
• Court: Kansas Supreme Court

27 P. 182

46 Kan. 701

ATCHISON, T. & S. F. R. Co. et al. v. LONG.^[1]

Supreme Court of Kansas

June 6, 1891

Syllabus

When a railroad company, in the construction of its road across a natural water-course, covers up a spring from which a part of the supply of water issues, builds a large embankment, and by other means totally diverts the water from the land of a person, through whose land the water naturally flowed before the construction of the road, such person is entitled to a mandatory injunction against the railroad company.

Commissioners’ decision. Error from district court Butler county; A. L. L. HAMILTON, Judge.

Geo R. Peck, A. A. Hurd, and Robt, Dunlap, for plaintiffs in error.

Hazlitt & Harris and Redden & Schumacher, for defendant in error.

OPINION

SIMPSON, C.

The material facts in this case are substantially undisputed, and are that Long is the owner and has been in the possession of the land decribed in his petition for a long time prior to the commencement of this action, and to the building of the railroad by the plaintiff in error, and is still the owner and in the possession and daily occupancy thereof. That into and over the land of Long there ran a natural water-course, which was fed largely, and in excessive dry weather entirely, from and by a spring on the land of an adjoining proprietor. The land is a part of the homestead of Long, and the spring furnished a never-failing flow of water through said land. When the plaintiff in error constructed its road through the land of the adjoining proprietor, this spring, being located within its right of way, was filled up by the building of an embankment from 20 to 30 feet high, and probably 100 feet wide at its base, and by that means the flow of the water was completely shut off and diverted from the land of Long. The railroad does not run through Long’s land, but near his line. The spring was located about 200 feet from his land. The water of the spring branch was also diverted from its natural channel by a ditch dug by the railroad company to Four-Mile creek; so that the water was completely diverted from the land of the defendant in error at all times, and in any event, by the filling up of the spring and the construction of the ditch. The railroad was constructed about one year before the commencement of this action. The court below granted Long a perpetual injunction against the plaintiffs in error from stopping and diverting the flow of the water through the spring branch, and from the spring thereon, from his land. The railroad companies bring the case here for review and insist that the damages, both present and future, resulting from diverting the flow of the water, can be easily measured and assessed in one action; that the benefit to Long is small, and the inconvenience to the railroad companies great; that the courts will not issue a mandatory injunction without a very great necessity...