City of McPherson v. Smrha, 39873
| Decision Date | 28 January 1956 |
| Docket Number | No. 39873,39873 |
| Citation | 293 P.2d 239,179 Kan. 59 |
| Parties | The CITY OF McPHERSON, Kansas, City of Moundridge, Kansas, City of Inman, Kansas, Appellees, v. R. V. SMRHA, Chief Engineer of the Division of Water Resources, Kansas State Board of Agriculture, Topeka, Kansas, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
In a statutory proceedings under G.S.1949, 82a-704 and 82a-706, wherein the vested rights of water users were determined by the chief engineer of the division of water resources of the state board of agriculture, and there was an appeal from such determination to the district court (G.S.1949, 82a-704) under circumstances set out in the opinion, it is held, that an order of the district court overruling a motion to dismiss the appeal to that court is not a final order and, therefore, this court has no jurisdiction to consider an appeal taken therefrom.
Warden L. Noe, Sp. Asst. Atty. Gen., and Harold R. Fatzer, Atty. Gen., and Paul Wilson, William P. Timmerman, Assts. Atty. Gen., on the brief, for appellant.
Russ B. Anderson, J. R. Rhoades, and George R. Lehmberg, McPherson, for appellees.
This was an appeal from an order of the trial court overruling appellant's motion to quash an appeal to that court from an order of appellant determining the vested rights of appellee water users together with sixteen other water users who are not parties to this appeal.
The appellant was R. V. Smrha, chief engineer of the division of water resources of the state board of agriculture, and the appellees were the cities of McPherson, Moundridge, and Inman, which had had their vested rights as water users determined by appellant according to law. G.S.1949, 82a-704, 82a-706.
After the determination of the vested rights of appellee water users, they took an appeal therefrom to the district court of McPherson county within a sixty day period as provided by G.S.1949, 82a-704, as follows:
Appellees have presented two contentions on the motion to dismiss the instant appeal. The first is that prior to 1955 under our laws there was no statutory provision for an appeal to this court from a ruling of the district court on an appeal to that court from a ruling of the chief engineer of water resources; and second, that the order overruling the motion to quash was not a final order or judgment and, therefore, it is not appealable.
We will cover the second contention first for the reason that should appellees be correct, then we do not have the first contention properly before us and as a result thereof we cannot consider it in the instant appeal.
In the case of Barnhouse v. Rowe, 178 Kan. 248, 284 P.2d 618, an order overruling a motion which was...
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