Clawson v. Garrison

• Decision Date: 23 March 1979
• Docket Number: No. 49064,49064
• Citation: 592 P.2d 117,3 Kan.App.2d 188
• Parties: Mary R. CLAWSON, Appellant, v. Chester GARRISON and Pauline Garrison, and Substituted Defendants James Borth and Pauline Garrison, Co-Executors under the Last Will and Testament of Otto Borth, Deceased, Appellees.
• Court: Kansas Court of Appeals

Page 117

592 P.2d 117

3 Kan.App.2d 188

Mary R. CLAWSON, Appellant, v. Chester GARRISON and Pauline Garrison, and Substituted Defendants James Borth and Pauline Garrison Co-Executors under the Last Will and Testament of Otto Borth Deceased, Appellees.

No. 49064.

Court of Appeals of Kansas.

March 23, 1979.

Syllabus by the Court

1. Injunctive relief is not used to prevent prospective injury unless it appears there is a reasonable probability of injury and an action at law will not afford an adequate remedy. Mere apprehension or a possibility of wrong and injury ordinarily is not enough to warrant the granting of an injunction. To establish a right to an injunction it is necessary for a party to satisfy the court that there are reasonable grounds to fear the recurrence of new injury with such frequency as to have serious effect, or that other considerations render his remedy at law inadequate.

2. The grant or denial of a mandatory injunction rests within the discretion of the trial court and should be disturbed only upon the showing of abuse.

3. Equitable estoppel is the effect of the voluntary conduct of a person whereby he is precluded, both at law and in equity, from asserting rights against another person relying on such conduct. A party asserting equitable estoppel must show that another party, by its acts, representations, admissions, or silence when it had a duty to speak, induced it to believe certain facts existed. It must also show it rightfully relied and acted upon such belief and would now be prejudiced if the other party were permitted to deny the existence of such facts.

4. Laches is principally a question of inequity of permitting a claim to be enforced; an inequity founded upon some change in the condition or relations of the property or parties. It is delay that makes it inequitable to afford the relief sought and warrants the presumption that a party has waived his right. Laches is an equitable device to bar legal claims in certain instances.

5. A mandatory injunction is an extraordinary remedial process usually resorted to for the purpose of effectuating full and complete justice, and commands the performance of some positive act. While the granting of mandatory injunctions is governed by the same rules as the granting of preventive injunctions, courts are more reluctant to grant a mandatory injunction than a prohibitory one, and generally an injunction will not lie except in prohibitory form. A party seeking a mandatory injunction must clearly be entitled to such relief before it will be rendered.

6. Owners of upper lands outside the incorporated limits of a city may not divert their surface waters by artificial means onto the lands of lower owners nor accelerate by means of ditches or increase the drainage of their lands to the injury of owners of lower lands.

7. In an action involving an owner of upper agricultural land who had converted her land usage to irrigated farming and an owner of adjacent lower land, it is held the trial court did not err in issuing a mandatory injunction requiring the upper landowner to restore lost surface water retention capability.

Arthur B. McKinley, Sublette, for appellant.

Jack E. Dalton of Mangan, Dalton, Trenkle & Gunderson, Dodge City, for appellees.

Before REES, P. J., and SPENCER and PARKS, JJ.

REES, Judge:

This is an appeal taken from a trial court grant of an injunction requested by the defendants and denial of an injunction requested by plaintiff. We affirm.

During the protracted period this case has been under advisement, we have not only sought an acceptable command of the evidence, issues and factual background of this litigation, but also the implications of its resolution. We will not undertake an explicit detailed recitation of the evidence, but we will set forth certain facts established by the evidence as well as some observations and conclusions of our own. To the extent the expression of these matters is not orderly, we ask the reader's indulgence. The parties may find limited factual misstatements but we are confident that if such exist they are inconsequential.

Particularly since World War II, the conduct of agribusiness in this state has substantially changed. Increased technological knowledge and capabilities have altered farming practices. Historically the foundation of the agricultural industry in the high plains of western Kansas has been dry land farming. Because of the vagaries of nature, farming in the region is severely affected by area and seasonal variations in rainfall. Water has always been one of the most important natural resources in the region. It is a dear commodity. In relatively recent times, consistent and increased crop production has been sought and achieved through widespread use of commercial fertilizers and underground water. Use of the latter has served two significant purposes. The impact of natural variations in precipitation has been lessened. Except for years of most fortuitous coincidence of weather conditions, controlled and increased surface application of water to crop land has increased its productivity beyond that otherwise possible.

Here we have two parties, operators of adjacent acreages, each of whom we will refer to in the singular, who are affected by the institution of irrigation practices incident to the use of underground water. Although the land in the area with which we are here concerned is quite level, there was natural drainage for surface water and historical natural drainage was from the plaintiff's property to the defendant's. On the parties' land there were no natural streams along which water ordinarily flowed throughout each year or even in the same season of each year. In its natural state there were so-called lagoons, or dry lake beds, on the property of both parties. When there was sufficient rain to cause a runoff of surface water, the lagoons would fill to their individual capacities and when a lagoon was filled excess surface water would travel along natural depressions to a lagoon or lagoons at lower elevation. If there was sufficient runoff, water would seek still lower locations off of and away from the parties' property. Understandably, the natural drainage was irregular in direction and under appropriate circumstances there was some drainage, or "back-up," of surface water from defendant's property onto plaintiff's property.

Although the parties operated other contiguous acreage, directly involved in this case are three quarter sections lying in a line from north to south operated by plaintiff and one quarter section operated by defendant lying immediately to the east of plaintiff's middle quarter section. At all times material, defendant's land has been committed to dry land farming; it is not irrigated. On the other hand, plaintiff has undertaken irrigation of her three quarters. To accomplish this, plaintiff has tinkered with Mother Nature. She has modified natural terrain features by leveling or "shaping." She has drilled and put into operation water wells, one on the north quarter and one on a quarter section adjacent to or near her south quarter, to provide water for irrigation of the three quarters. The effect of the shaping is that surface drainage from the north and south quarters is to the middle quarter and from the middle quarter east to defendant's quarter. The land reshaping and installation of the irrigation system was performed during the years 1966 through 1970 at an approximate cost of $32,200.

Plaintiff's irrigation water is transmitted by pipe from the wellhead to the north side of the north quarter, to the west side of the middle quarter and to the south side of the south quarter. In substantial accord with good water management practice, the plaintiff excavated a tailwater pit at the extreme east side of the middle quarter. The tailwater pit provides a retention capability for irrigation water that is not absorbed into the ground as it flows over the surface. The grading and shaping of the north quarter was such that irrigation water reaching its south side travels to a location at approximately the southeast corner of the quarter and then by ditch along the east property line it travels south to the tailwater pit. The middle quarter was shaped such that irrigation water reaching its east side travels by ditch to the south or north to the tailwater pit. The south quarter was shaped such that irrigation water reaching the north side travels east or west to a culvert where it passes through to the north side of the south line of the middle quarter and then by ditch to the southeast corner of the middle quarter and finally by ditch north to the tailwater pit. By means of a pump at the tailwater pit and pipe laid for the purpose, accumulated water at the tailwater pit is returned to the distant side of one or more of the three quarters where it is again released to pass through the crop acreage. The obvious purpose of the tailwater pit system is reuse of once-pumped underground water so that it does not go to waste because it is not absorbed when passing across the crop acreage. The entire system would function without complication if it were not for consideration of surface water resulting from precipitation and if the operation of the system is overseen and managed so that the tailwater pit is not allowed to overflow. As to surface water resulting from precipitation, the retention capability of the tailwater pit is dependent upon the amount of irrigation water accumulated or allowed to accumulate in the pit and whether the tailwater pit recovery system is in operation, on pump. By way of explanation, if the tailwater pit is filled to capacity with irrigation water, then there is no rainwater retention capability; if there is no irrigation water in the pit, the entire capacity of the pit is available for retention of rainwater; and if the tailwater pit is on pump, the rainwater retention capability has a correlation to...