Baldwin v. Township

• Decision Date: 05 November 1904
• Docket Number: 13,537
• Parties: JOHN BALDWIN et al. v. OHIO TOWNSHIP et al
• Court: Kansas Supreme Court

78 P. 424

70 Kan. 102

JOHN BALDWIN et al. v. OHIO TOWNSHIP et al

No. 13,537

Supreme Court of Kansas

November 5, 1904

Decided July, 1904.

Error from Franklin district court; CHARLES A. SMART, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. SURFACE-WATERS--Right to Drain into a Natural Watercourse. The owner of lands through which a natural watercourse flows may accumulate surface-waters falling upon lands adjacent thereto and drain the same into such stream without becoming liable to a lower riparian owner for damages, so long as the natural capacity of the stream is not exceeded.

2. SURFACE-WATERS--No Liability for Incidental Injuries, or Where Capacity of Natural Stream is Not Exceeded. An upper proprietor of lands is not liable to a lower proprietor for damages caused by diverting surface-water and casting it into a natural watercourse passing through both estates where such diversion is occasioned by the improvement of the upper estate, in good faith, and where the injury is incidental, small, or not occasioned by the stream's natural carrying capacity's being exceeded.

3. SURFACE-WATERS--Road-overseer--Highway--Drainage--Damages. A road-overseer, in good faith, made a substantial improvement to a highway by grading it and cutting a ditch along its side, whereby surface-waters were gathered and drained into a natural watercourse flowing across such highway, to the damage of a lower riparian proprietor. Held, that such proprietor could not recover damages, or enjoin the maintenance of such ditch, it not appearing that such damages were occasioned by the overflow of such stream by reason of the increased flow of water therein.

Gamble & Costigan, for plaintiffs in error.

Deford & Deford, for defendants in error.

CUNNINGHAM J. All the Justices concurring.

OPINION

CUNNINGHAM, J.:

Plaintiffs' action was for the purpose of obtaining damages for injuries suffered by the alleged illegal diversion of surface-water thrown upon their land by defendants, and for a mandatory injunction restraining the further continuance of such injuries.

The case is before us upon a transcript containing only the pleadings, the findings of fact made by the trial judge, the conclusions of law, and the judgment. As to the facts we have no light, except what is disclosed by these findings. From them we ascertain that the plaintiffs were, and had been for several years prior to the commission of the wrongs of which they complained, the owners of certain land, which they used and occupied as their homestead, lying south of a public highway extending east and west along its north boundary. During this time there was a natural watercourse entering the plaintiffs' land on its north side and extending in a southerly direction nearly the full length of the land. This natural watercourse is spoken of as the "west draw," and drains an area of about thirty-eight acres on the north side of the highway. About thirty-five rods east of the point where this west draw crosses the highway is a surface-water drain, and about twenty-seven rods still farther east is another surface-water drain. These two drain an area of forty-eight acres, and are known as the "middle" and "east" draws, respectively.

At the time the plaintiffs became the owners of the land occupied by them as aforesaid, and for some time prior thereto, culverts were maintained across the middle and east draws at the point where the highway intersected them. These culverts were of small dimensions, being eight by twelve inches on the inside. There was also a bridge across the highway at the point where the west draw intersected it. We presume that ordinarily the surface-waters coming down the middle and east draws passed through their respective culverts and over and upon the plaintiffs' lands to the south in no defined channels, except that their general course was south and east. These waters finally flowed into what is spoken of as Middle creek. The natural watercourse known as the west draw fell into Middle creek some distance west of the point where the middle and east draws joined it.

In 1895 one John Blocklinger, who was then the duly elected, qualified and acting road-overseer of the road district in which this highway was located, for the purpose of improving the same, caused it to be graded up and a ditch dug along its entire north side, emptying into the west draw at its west end. He also removed the culverts which had theretofore intersected the highway at the middle and east draws. The effect of this was to collect all of the surface-water which had theretofore passed down through these draws into this ditch, by means of which the water was carried westward and emptied into the west draw, thereby increasing the volume of water therein. It is of this increase of volume, and the damage caused to them thereby, that the plaintiffs complain.

The court specifically found that "the digging of said ditch, the closing up and removal of said culverts and the grading of said highway were a substantial improvement to the highway, and were done in good faith, with no other intention than to improve it"; and further, that "the water carried along said ditch on the north side of said highway and emptied into said west draw flows in and upon the plaintiffs' farm, to their injury." The court also found that "had said ditch along the north side of said highway not been constructed, the waters accumulating in said middle and east draws could not have gotten into said west draw nor onto the land of plaintiffs, and this would be true even though the culverts at the intersection of said middle and east draws with the highway were removed"; that "the plaintiffs have suffered damages to their said farm by reason of the said surface-water's being collected from said middle and east draws into said ditch and cast in a body upon their said farm"; and that "they will continue so to suffer damages from said cause so long as said ditch is permitted to remain as it was when said action was begun and as it now is."

As a conclusion of law, the court held as follows:

"The surface-water having been accumulated in an artificial ditch, and cast in a body upon the land of Mr. Baldwin, the defendants would be enjoined were it not for the fact that it was cast upon the farm of the plaintiffs by means of a natural watercourse."

Thereupon judgment was rendered against plaintiffs for costs, and to reverse that judgment plaintiffs appeal to this court.

Several reasons other than the one given by the court are urged by defendants in error for the affirmation of this judgment. We prefer, however, not to give these reasons attention, but to discuss the matter entirely from the standpoint taken by the court below. We shall assume that the party responsible for the making of the ditch and the improvement of the highway, whether such party was the township, township officers, or the road-overseer, occupied the same relation to the plaintiffs as would a private owner, and that they had a right to dispose of surface-water coming upon the highway in the same manner, and to the same extent, as would the private owner of a dominant adjoining estate. In Young v. Comm'rs of Highways, 134 Ill. 569, 25 N.E. 689, the court said:

"The commissioners of highways, where they undertake to drain a public highway, possess the same rights and are governed by the same rules as adjoining landowners who may undertake to drain their own lands, except where they may be proceeding under the eminent-domain laws of the state."

The common-law rules regulating the rights and duties of adjoining owners of lands relative to surface-water obtain in this state. (A. T. & S. F. Rld. Co. v. Hammer 22 Kan. 763, 31 Am. Rep. 216; Gibbs v. Williams, 25 id. 214, 37 Am. Rep. 241.) Under those rules it is well settled that the owner of the upper estate may not gather surface-water falling or accumulating thereon, and by means of artificial channels divert it from its natural course and discharge it upon the lower estate, to the damage of the owner thereof. This rule, however, goes hand in hand with the equally...