Bonnewell v. Lowe

• Decision Date: 09 October 1909
• Docket Number: 16,178
• Citation: 80 Kan. 769,104 P. 853
• Parties: L. K. BONNEWELL v. J. T. LOWE et al
• Court: Kansas Supreme Court

104 P. 853

80 Kan. 769

L. K. BONNEWELL v. J. T. LOWE et al

No. 16,178

Supreme Court of Kansas

October 9, 1909

Decided July, 1909.

Error from Cowley district court; CARROLL L. SWARTS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. INJUNCTION--Right to a Review--Change of the Status Quo. Where the trial court refuses an injunction the right of review is not necessarily defeated by the full performance pending an appeal of the act sought to be enjoined. The court has jurisdiction to order the restoration of the original status, if the nature of the case is such that the order can be made effective.

2. DRAINAGE--Location of a Ditch--Route Described in the Petition. Under the provision of the drainage statute (Gen. Stat. 1901, § 2538) that upon the filing of a petition for a ditch, setting forth a substantial description of its proposed starting-point, route and termination, the township trustee shall upon certain conditions locate such ditch "as substantially conforms with the route described in the petition," it is not necessary that the termini and route of the ditch as constructed shall correspond exactly with the description in the petition. A considerable variation in this respect is not ground for declaring the proceedings void when collaterally attacked.

3. DRAINAGE--Finding that Establishment of Ditch is Necessary. Under the statute (Gen. Stat. 1901, § 2538) providing that the township trustee shall locate a drainage-ditch under certain conditions if he finds it necessary, and that the clerk shall make a full and complete record of all the proceedings in connection therewith, an order for the establishment of such a ditch will not upon a collateral attack be held void because no formal finding of its necessity has been recorded.

4. DRAINAGE--Location of Ditch--Parties Benefited. The requirement of the statute (Gen. Stat. 1901, § 2539) that for the purpose of apportioning the cost a drainage-ditch shall be divided into "sections not less in number than the number of owners of land through which the same may be located" does not imply that each owner is to construct so much of it as lies upon his own land.

5. DRAINAGE--Obstruction of Ditch--Repairs--Notice. The statute (Gen. Stat. 1901, § 2539) providing that whenever such drainage-ditch is obstructed it shall be the duty of the township trustee; "after five days' notice having been given by any person damaged thereby," to cause it to be repaired does not make the giving of such notice a prerequisite to action by the trustee; when he is satisfied of the need of repairs he may act upon his own initiative.

W. P Hackney, and J. T. Lafferty, for the plaintiff in error.

L. H. Webb, and O. P. Fuller, for the defendants in error.

OPINION

MASON, J.:

By order of the township trustee two ditches theretofore constructed under the drainage statute (Gen. Stat. 1901, §§ 2535-2550) were repaired, and the cost was apportioned among the landowners benefited. One of these, L. K. Bonnewell, disputed the validity of the charge made against him, refused to pay it, and brought an action to prevent the amount being certified to the county clerk and placed upon the tax-roll. He was denied relief, and prosecutes error.

The defendants maintain that the proceeding should be dismissed because the acts sought to be enjoined have already been performed and therefore there is nothing against which the injunction prayed for can now operate, if allowed. They rely for support in this contention upon City of Alma v. Loehr, 42 Kan. 368, 22 P. 424, where it was said: "The function of a writ of injunction is to afford preventive relief; it is powerless to correct wrongs or injuries already committed." That case was obviously well decided, for the act performed, as in Knight v. Hirbour, 64 Kan. 563, 67 P. 1104, was of such a character that the court could not compel its undoing, and an order directed to that end would necessarily have been fruitless. But the reason quoted was too broadly stated. In a proper case a mandatory injunction may be issued. (Railway Co. v. Billings, 77 Kan. 119; 16 A. & E. Encycl. of L. 342, 343.)

"Where defendant has fully completed the act sought to be restrained, after the filing of the bill but before the issuance of any order or decree, the court has power to compel by mandatory injunction the restoration of the former condition of things." (22 Cyc. 742.)

Here the charge against the plaintiff has been entered upon the tax-roll, but no such change of conditions has taken place as to prevent the court by proper order from restoring the parties to their original status. A judgment in favor of the plaintiff, by declaring the tax illegal, would nullify the effect of its entry on the roll. In a case cited in support of the text just quoted it was said:

"Complainant had prayed for an injunction, which had not been secured, but after the court had acquired jurisdiction, if the collector enforced payment of the tax that fact would not constitute any defense to the bill, but the money was collected subject to the power of the court to compel the collector to refund it or submit to such other decree concerning it as might be equitable. A party filing a bill for an injunction may fail to procure a preliminary injunction, but any act after the court has acquired jurisdiction will be subject to the power of the court to compel a restoration of the status or to enforce such other relief as may be proper." (New Haven Clock Co. v. Kochersperger, 175 Ill. 383, 395, 51 N.E. 629.)

The validity of the assessment against the plaintiff is attacked upon the ground that the proceedings under which the ditches were originally constructed were void for these reasons, which will be considered in order: (1) The ditches were not located in conformity with the routes described in the petitions on which they were respectively based. (2) The record shows no, finding that such ditches were necessary. (3) No part of either ditch is located upon the plaintiff's land.

The statute (Gen. Stat. 1901, § 2538) provides that upon a petition of owners of land adjacent to the line of a proposed ditch being filed with the township clerk, "setting forth a substantial description of its proposed starting-point, route, and termination," and upon certain conditions being fulfilled, the trustee shall locate and establish such ditch "as substantially conforms with the route described in the petition." One of the petitions here involved (the one to which the first objection applies with the greater apparent force) asked that a ditch be dug "in the direction most feasible," along a route described thus: "From a point on the north line of said section 5, about 40 rods east of the northwest corner thereof, in a southwesterly direction, through said section 5 and 6 to the Arkansas river." The ditch actually constructed began on the west side of a road between sections 5 and 6, ran southwest for about half a mile, then turned to the southeast and ran a little over a mile to the river, passing through sections 6, 7 and 8, but not touching section 5. The ditch was also extended a quarter of a mile northwest from the bend. The plaintiff claims that this course did not "substantially conform" with the proposed route, and that the extension northwest from the angle was in reality a separate ditch, not supported by any petition whatever.

The departure from the route indicated in the petition was considerable, but we think not sufficient to devest the trustee of jurisdiction. A lateral ditch draining a part of the land embraced in the original plan was not necessarily an independent project requiring a separate petition. The statutory requirement of substantial conformity clearly implies that the ditch constructed need not follow absolutely the route indicated. Of a somewhat similar provision it was said, in Kinnie v. Bare, 68 Mich. 625, 36 N.W. 672:

"It is not contemplated . . . that the petition for the drain should contain an accurate description of the termini and route of the proposed drain. It could not be well done without the petitioners first went to the expense of a survey, in order to determine the feasibility of the route. This the law does not require. What it contemplates is that the termini and route shall be approximately described for the...