DeWerff v. Schartz
| Decision Date | 17 March 1988 |
| Docket Number | No. 59644,59644 |
| Citation | 12 Kan.App.2d 553,751 P.2d 1047 |
| Parties | Vernon W. DeWERFF and Marian K. DeWERFF, Appellants, v. LeRoy G. SCHARTZ, Dale E. Schartz, Joseph Schermuly, and Barton County Commissioners, Appellees. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. Injunctive relief is equitable in nature and its grant or denial in each case is governed by the principles of equity. Absent an abuse of discretion, the appellate court will normally not interfere with a trial court's decision granting or denying injunctive relief.
2. As to agricultural lands outside the incorporated limits of a city, upper proprietors may not divert their surface waters by artificial means onto the lands of lower proprietors nor accelerate by means of ditches or increase the drainage of their lands to the injury of lower owners.
3. The facts of the case are examined and it is held that the trial court did not abuse its discretion in refusing to grant an injunction to (1) enjoin an upper proprietor of farmland from pumping water in the course of natural drainage and (2) require the upper proprietor to remove an open ditch which drained water into the general course of natural drainage.
4. A party may not maintain an action for the wrongful procurement of a restraining order (other than one upon a bond) without a showing of malice.
5. When the record on review will not support a presumption that the trial court found all the facts necessary to support the judgment, the case will be remanded for additional findings and conclusions even though none of the parties objected either in the trial court or in this court.
Robert L. Peter, of Carpenter & Peter, Great Bend, for appellants.
Robert L. Bates, of Hagen, Bates & Suelter, and Larry E. Keenan, of Keenan Law Firm, P.A., Great Bend, for appellees.
Before SIX, P.J., and BRAZIL and ELLIOTT, JJ.
Plaintiffs Vernon and Marian DeWerff appeal from the trial court's denial of their request for an injunction to enjoin defendants Dale Schartz and Joseph Schermuly from pumping water from the Schermuly farmland. The DeWerffs also appeal the trial court's award of damages to Dale Schartz and Schermuly based upon the wrongful issuance of a temporary restraining order.
LeRoy Schartz, originally named as a party defendant in this action, was dismissed at the pretrial conference.
The issues are: (1) Did the trial court err in allowing defendants Schermuly and Schartz to continue to pump water from behind the berm located on the Schermuly property, (2) did the trial court abuse its discretion in denying the DeWerffs' request for an injunction to remove the northernmost of the two ditches on the north side of Schermuly's property, and (3) did the trial court err in awarding Schermuly and Schartz damages for the wrongful issuance of the temporary restraining order?
We affirm on issues (1) and (2). We reverse and remand with directions on issue (3).
The DeWerffs and Schermuly are abutting owners of quarter sections of farmland located in Barton County, Kansas. Dale Schartz has been the tenant of the Schermuly property since 1976 and farms the property on a sharecrop basis.
The DeWerff land lies directly east of the Schermuly land. An elevated dirt township road runs between the two properties. Excess water from Schermuly's property naturally drains in an easterly direction onto the DeWerffs' land. In 1968, Schermuly leveled his quarter section for irrigation purposes, eliminating many low spots and depressions which had previously retained water after rainfall. To maintain the surface water retention capacity of his property, Schermuly constructed small berms along the entire east side of his property and along a portion of the south side. These berms directed tailwater from the property into a tailwater pit located in the northeast corner of the property. In addition, Schermuly dug two ditches on the north side of the property. The southernmost of these two ditches carried tailwater from the Schermuly property into the tailwater pit. The northernmost ditch took the water draining from other properties to a drainage ditch on the west side of the dirt township road. The water would be carried south in this ditch and then east towards the DeWerff property though culverts installed by the county under the road.
The southern eighty acres of the DeWerff property were previously owned by Frank Neff. After Schermuly completed his leveling activities, Neff constructed a dike along the west side of his property to repel waters draining from Schermuly's property. The dike forced the water back onto the Schermuly property, so Schermuly and Schwartz increased the height of the berm to prevent this. After the berm was heightened, the DeWerffs, who then owned only the north eighty of the quarter section, constructed a dike on the west side of their property, much like Neff had done on the south eighty. In 1981, the DeWerffs acquired the south eighty owned by Neff.
During periods of heavy rain, water would collect on the west side of Schermuly's berm. Prior to this action being filed, Schermuly and Schartz would pump this water from behind the berm into the ditch on the west side of the dirt township road. The water would travel south to the culverts and then east towards the DeWerff property.
The DeWerffs initiated this action on April 22, 1985, seeking damages and injunctive relief. The DeWerffs alleged that the pumping activity unlawfully diverted and accelerated the flow of water onto their property. The same day, they procured a temporary restraining order without bond, enjoining Schermuly and Schwartz from pumping water from behind the berm. The parties agreed to a controlled pumping agreement and the restraining order was lifted.
Schartz and Schermuly filed an answer and counterclaim, alleging that the DeWerffs had wrongfully caused the issuance of the temporary restraining order. The trial court, among other things, ordered that (1) Schermuly and Schartz could pump water from behind the berm only if the water in the township road ditch was lower than the water behind the berm and prior notice was given to the DeWerffs, (2) Schermuly and Schartz need not fill in the northernmost of the two ditches on the Schermuly property, and (3) Schermuly and Schartz were entitled to $2,718 each in damages resulting from the wrongful issuance of the restraining order.
The DeWerffs contend the trial court abused its discretion in refusing to enjoin Schermuly and Schartz from pumping water from behind the berm into the township ditch.
Injunctive relief is equitable in nature and its grant or denial in each case is governed by the principles of equity. Absent an abuse of discretion, the appellate court will normally not interfere with a trial court's decision granting or denying injunctive relief. See U.S.D. No. 503 v. McKinney, 236 Kan. 224, 226-27, 689 P.2d 860 (1984); Kansas State Bd. of Pharmacy v. Wilson, 8 Kan.App.2d 359, 361, 657 P.2d 83 (1983).
Under common law, surface water was a common enemy of landowners. The landowner was free to elect the method of control. The enactment of the statutory forerunners to K.S.A. 24-105 and 24-106 modified the common law. A landowner's right to deal with surface water in any manner was restricted. Clawson v. Garrison, 3 Kan.App.2d 188, 195, 592 P.2d 117 (1979). K.S.A. 24-105 provides in relevant part "It shall be unlawful for a landowner or proprietor to construct or maintain a dam or levee which has the effect of obstructing or collecting and discharging with increased force and volume the flow of surface water to the damage of the adjacent owner or proprietor."
The rule in Kansas now is "that as to agricultural lands outside the incorporated limits of a city, upper proprietors may not divert their surface waters by artificial means onto the lands of lower proprietors nor accelerate by means of ditches or increase the drainage of their lands to the injury of lower owners." Clawson v. Garrison, 3 Kan.App.2d at 203, 592 P.2d 117 (citing Goering v. Schrag, 167 Kan. 499, 501, 207 P.2d 391 [1949]. The DeWerffs rely on this rule. They contend: (1) The pumping activity by Schermuly and Schartz constitutes an acceleration or increase in drainage of water onto the DeWerff property, (2) the pumping activity injures them, and (3) such activity should have been enjoined entirely, not merely regulated.
The evidence in the case is controverted as to whether the leveling and pumping activities actually increased the amount of drainage onto the DeWerff property.
According to the evidence, the increase in the amount of drainage of water onto the DeWerff property could range from 3.9 acre feet (assuming the tailwater pit was full) to 0 acre feet. The trial court apparently believed that the leveling of the Schermuly property did not affect its surface water retainage capability. That conclusion is borne out by the evidence.
The controlled pumping allowed by the trial court's order does not appear to have sanctioned an increase of drainage of the Schermuly property onto the DeWerff property. Under the court's order, water may be pumped from behind the berm only when the water in the ditch on the west side of the township road is below that in the berm and prior notice is given to the DeWerffs. The court was attempting to arrive at an equitable result whereby controlled pumping was permitted during those times when the township ditches were sufficiently low to contain and carry the water through its natural course.
A trial court is given discretion in determining whether to grant or deny an injunction. A trial court's decision will only be overturned upon a showing of an abuse of discretion. An abuse of discretion exists when no reasonable person would take the view adopted by the trial court. One who asserts an abuse of discretion bears the burden of showing such abuse. Hagedorn v....
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