Baldwin v. City of Overland Park, 45538
| Decision Date | 11 April 1970 |
| Docket Number | No. 45538,45538 |
| Citation | 205 Kan. 1,468 P.2d 168 |
| Parties | Norbert I. BALDWIN and Beverly M. Baldwin, Appellees, v. The CITY OF OVERLAND PARK, Kansas, a Municipal Corporation, Appellant. |
| Court | Kansas Supreme Court |
1. Nuisance means annoyance, and any use of property by its owner which gives offense to or endangers life or health, violates the laws of decency, or obstructs the reasonable and comfortable use of property of another, may be said to be a nuisance.
2. To be actionable, the nuisance complained of must be the proximate cause of the injury and damage for which recovery is sought.
3. A city has no duty to provide drainage to take care of surface waters and ordinarily its failure to protect citizens from surface water is not actionable.
4. A municipality has no right to alter the course of drainage of surface water so as to throw water upon property where it does not naturally flow.
5. A municipality is not liable to a property owner for the increased flow of surface water over or onto his property, arising wholly from changes in the character of the surface produced by the opening of streets, building of houses, and the like, in the ordinary and regular course of the expansion of a municipality.
Donald C. Amrein, Mission, for appellant.
John H. Johntz, Jr., of Payne & Jones, Olathe, for appellees.
HARMAN, Commissioner:
This is an action for damages against a city for alleged maintenance of a nuisance created by flow of water in a drainage ditch adjoining plaintiffs' property.
Trial to the court resulted in a judgment for plaintiffs from which the city has appealed.
The evidence developed at trial, about which there is no dispute, revealed the following:
In 1962 plaintiffs purchased the property in question, a house and lot at 7312 Beverly street, Overland Park, Kansas, which they have since occupied as their home. The house was constructed in 1954. Along the north side of the property a rock and mortar retaining wall had been built. The wall was 120 feet long, eighteen inches wide, and six or seven feet high at one end and four feet high on the other, with a chain link fence installed on top. The wall had no footings and contained no apertures in its face through which ground water could escape. It was located entirely on plaintiffs' land and was in good shape when plaintiffs bought the property. Parallel and adjacent to the wall the city has a drainage and utility easement ten feet wide. This easement was one platted by the developers of the land prior to its incorporation within the city.
Located on the easement is a drainage ditch ten to twelve feet wide and five to seven feet deep. The ditch has a flat, rocky bottom and drains a residential area of approximately twenty blocks generally south of 69th street and east of Metcalf avenue. This area was developed prior to 1962, with the exception of 73d Street Terrace which has had homes constructed since that time. New sidewalks were built. About a dozen cul-de-sacs in the area drain into the ditch. The city did not construct the ditch, has done nothing to improve it and has never maintained it but has on occasion removed trash from it when requested to do so. At times during and after rains the rapidly moving water in the ditch has carried along with it much debris. The drainage water has been increasing in volume and intensity.
In 1961 a petition was circulated in the area asking creation of a water benefit district. In 1965 the city adopted standards and specifications for construction of storm drainage systems but the city has none within its corporate limits.
In the area drained by the ditch along plaintiffs' property there are a few short storm sewers and some cement conduits draining water under and from the streets into the ditch. Much of the area is impervious to natural water seepage into the ground because of driveways, rooftops and streets. There has been continuous erosion in the ditch since 1958, particularly in the area between Lamar and Nall Avenues.
In the fall of 1965 about six feet of plaintiffs' wall fell in. They notified the city engineer and were informed the city had no funds for maintaining water drainage ditches. In May of 1966 plaintiffs repaired the wall, this being about two weeks before the damage in question.
On June 12, 1966, there was a heavy, although not unprecedented, rainfall in the area. Approximately eighty feet of plaintiffs' wall fell in and water came into the basement of their home to a depth of over two feet, causing the basement wall and floor to crack and damaging items of personal property in the basement. Before the retaining wall fell in there had been vertical eroding of the soil under it of about five or six inches.
On July 20, 1966, plaintiffs filed with the city notice of their damage as required by K.S.A. 12-105, and later instituted this suit when their claim was not paid.
As indicated, plaintiffs prevailed, the trial court making findings of fact reciting the evidence generally in accord with that stated. Its essential findings upon which liability is predicated were as follows:
property, and eroded out deep water holes, in the easement, in which water would stand and become stagnant, and in which mosquitoes would breed. The defendant once sprayed to kill the mosquitoes in the area near plaintiffs' home. There was frequently an odor from the ditch. The ditch was a hazard to plaintiffs' children and other children living in the area.
Based upon the foregoing the court concluded:
Upon appeal the city makes several contentions, among them that it had not created or maintained a nuisance for which it is liable.
For affirmance plaintiffs rely principally upon four of our cases. The first is Jeakins v. City of El Dorado, 143 Kan. 206, 53 P.2d 798. The petition for damages alleged the city operated a sewage disposal plant, dumping treated sewage into the Walnut River; during drouth periods the river became so low the volume of water was insufficient to carry away the waste material so that its stench became offensive to plaintiffs' residence near the river. After pointing out that although cities are authorized by statute to erect and maintain sewers and sewage disposal plants, this court held they are not warranted in operating them as to constitute a public nuisance, and if they do so operate, they become liable in damages to persons injured, it being no defense that such erection and maintenance are in the exercise of a governmental function. The court ruled the petition sufficiently alleged a nuisance, saying:
'Nuisance means annoyance, and any use of property by its owner, which gives offense to or endangers life or health, violates the laws of decency, or obstructs the reasonable and comfortable use of property of another, may be said to be a nuisance.' (Syl. 2.)
Plaintiffs next cite Krantz v. City of Hutchinson, et al., 165 Kan. 449, 196 P.2d 227. In this action the city, at a time of emergency when flood waters from the Arkansas River threatened, allegedly constructed a dike more than five miles beyond the city limits in order to protect the city with the result water was diverted from its natural course and thrown...
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