Dougan v. Rossville Drainage Dist., 61600

• Decision Date: 03 June 1988
• Docket Number: No. 61600,61600
• Citation: 757 P.2d 272,243 Kan. 315
• Parties: L. Frank DOUGAN, Robert Mohler, Lawrence Mohler, and Raymond Mohler, Appellees, v. ROSSVILLE DRAINAGE DISTRICT, Appellant.
• Court: Kansas Supreme Court

Page 272

757 P.2d 272

243 Kan. 315

L. Frank DOUGAN, Robert Mohler, Lawrence Mohler, and Raymond Mohler, Appellees, v. ROSSVILLE DRAINAGE DISTRICT, Appellant.

No. 61600.

Supreme Court of Kansas.

June 3, 1988.

Syllabus by the Court

1. An upper proprietor of land may not gather and divert surface water from its natural course of flowage and thereby exceed the carrying capacity of the natural watercourse in which the surface water is deposited if that action causes damage of a serious and significant nature to a lower landowner.

2. The rule stated in Syllabus p 1 is applicable to a drainage district in carrying out its statutory duties.

3. The discretionary function exception under K.S.A. 75-6104(d) of the Kansas Tort Claims Act is not applicable in those situations where a legal duty exists, either by case law or by statute, which the governmental agency is required to follow. The governmental agency does not have a discretionary right to violate a legal duty and avoid liability.

Richard F. Hayse, of Eidson, Lewis, Porter & Haynes, of Topeka, argued the cause and was on the briefs for appellant.

J. Roger Hendrix, of Marshall, Davis, Hendrix & Schenk, of Topeka, argued the cause and was on the brief for appellees.

PRAGER, Chief Justice:

This is an action brought by the plaintiffs, L. Frank Dougan and his farm tenants, the Mohlers, to recover from defendant Rossville Drainage District for damage to cropland and loss of crops caused by flooding. Plaintiffs claim that the flooding was the result of acts of the defendant which caused a diversion of natural waters through the construction of dikes and embankments and the widening of a drainage ditch.

The defendant filed a motion to dismiss the petition on the basis that the Rossville Drainage District was immune from liability under the Kansas Tort Claims Act (K.S.A. 75-6101 et seq.) for any damages caused by the flooding of the Dougan property. The district court denied the motion, but found that the issue of immunity was controlling and certified the question for an interlocutory appeal. The case was then appealed and transferred to the Supreme Court.

The sole issue presented on the appeal is whether the discretionary function exception under K.S.A. 75-6104(d) provides immunity to the drainage district for damages caused by the flooding of the plaintiffs' property.

The plaintiffs' petition was as follows:

"1. Plaintiff, L. Frank Dougan, is the owner of certain real estate located in Shawnee County, Kansas, located just south of the city of Silver Lake, Kansas.

"2. Plaintiffs, Robert Mohler, Lawrence Mohler and Raymond Mohler, are the tenants for agricultural purposes on the property owned by Plaintiff, L. Frank Dougan.

"3. Defendant, Rossville Drainage District, is a duly organized Drainage District under the laws of the State of Kansas and is located in Shawnee County, Kansas....

"4. Defendant, Rossville Drainage District, has the authority and control over and the legal responsibility and obligation of the Rossville Drainage District, including the drainage ditch and channel which runs in a generally southeasterly direction from Rossville, Kansas to Silver Lake, terminating at a point on the west side of the property owned and farmed by the Plaintiffs.

"5. The drainage ditch or channel owned and operated by Defendant, Rossville Drainage District, collects the surface water drainage of an area between Rossville and Silver Lake, Kansas, and discharges such surface water drainage into Silver Lake, which is a natural water course. The land owned and farmed by the Plaintiffs is located immediately adjacent to Silver Lake, and neither the land owned and farmed by the Plaintiffs nor Silver Lake, is part of the Defendants' Drainage District.

"6. In the construction, operation and control of its drainage district, the Defendant has and does divert the natural flow of surface water drainage into its ditch or channel, thereby increasing the volume and flow of water that is deposited into the natural water course and, at times, exceeds the carrying capacity of the natural water course causing an overflow onto Plaintiffs' property.

"7. In June of 1982, Plaintiffs' property was inundated by water from the Defendants' drainage ditch or channel, causing damages of serious and sensible nature to the interests of the Plaintiffs.

"8. The proximate cause of the damages of the Plaintiffs were the acts of the Defendant in gathering and diverting surface water from its natural water course, thereby exceeding the carrying capacity of the natural water course adjacent to the Plaintiffs' property. Such excess volume of water overflowed the Plaintiffs' property causing damage to the growing crops.

"WHEREFORE, Plaintiffs pray for judgment against the above named Defendant for an amount in excess of Ten Thousand Dollars ($10,000.00)...."

Most of the facts in the case are undisputed, although there is a serious factual issue as to the cause of the flooding of plaintiffs' property. Plaintiff Dougan owns a 640-acre plot of land just south of Silver Lake. A diagram of the Dougan property can be found as a part of the opinion in the case of Dougan v. Shawnee County Comm'rs, 141 Kan. 554, 557, 43 P.2d 223 (1935). The land was flooded in June 1982, following a period of heavy rain. A levee washed out at the northwest corner of the Dougan farm, inundating the land. Dougan's crops were under water for three days. He lost his crops and incurred costs of replanting his land and repairing the dike. The Rossville Drainage District is responsible for collecting and draining surface water from approximately 7,000 acres of land between Rossville and Silver Lake. The water is carried east towards Silver Lake, where the district's territory ends.

The levee which failed here was designed and constructed at a right angle by the district. While the levee can handle a normal flow of water, excess loads may cause the levee to fail. Failure occurred in 1967, 1973, and 1982. Both the district and Dougan have repaired the levee in the past but neither has changed the design. Following the 1973 flood, Dougan sued the district for the damage incurred. Dougan v. Rossville Drainage District, 2 Kan.App.2d 125, 575 P.2d 1316, rev. denied 225 Kan. 843 (1978). In that opinion, the facts setting forth the location of the Dougan land with respect to the drainage ditch are stated in some detail.

In 1979, the Kansas Tort Claims Act was enacted. The district now claims immunity under the act for any damages incurred in 1982, and based its motion to dismiss on that theory. Due to the nature of this action, the evidentiary record in the case has not been fully developed. Each side submitted to the court a report from its own expert. The plaintiff's expert concluded that "97% of the June 1982 floodwater which accumulated in the lake and on adjacent lands was conveyed to the site by the Rossville Drain. More than three-quarters of this water came from the overflowing Cross Creek."

The defendant's expert concluded otherwise. His report stated: "Our review indicates that the construction and/or operation of the Rossville Drain has little impact on the flooding in the area of Silver Lake.... Although failure of the levee may affect flooding during smaller flows, when the water is 4 feet above the top of the levee, such details as alignment, design, construction and maintenance have no relationship to flooding." Thus, causation is the important fact issue if the case goes to trial.

Because the matter is before this court on a motion to dismiss, it would be helpful at the outset to note the scope of review in such cases:

" 'The question for determination is whether in the light most favorable to plaintiff, and with every doubt resolved in plaintiff's favor, the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim.' " Robertson v. City of Topeka, 231 Kan. 358, 359, 644 P.2d 458 (1982).

The Kansas Tort Claims Act is considered an open-ended act, meaning that liability is the rule and immunity the exception. See K.S.A. 75-6103(a) and Jackson v. City of Kansas City, 235 Kan. 278, 286, 680 P.2d 877 (1984).

K.S.A. 75-6103(a) provides:

"(a) Subject to the limitations of this act, each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state."

In K.S.A. 75-6102, the term "governmental entity" is defined to include a municipality, or any county, township, city, school district, or other political or taxing subdivision of the state or any agency, authority, institution, or other instrumentality thereof. The parties agree that the Rossville Drainage District is a governmental entity. It is a public corporation which was first organized in 1905. Traditionally, such districts have been considered governmental entities. State, ex rel., v. Kaw Valley Drainage District, 126 Kan. 43, 47, 267 P. 31 (1928), and Jefferson County v. Drainage District, 97 Kan. 302, 303, 155 P. 54 (1916).

The statutes governing drainage districts grant specific powers to tax, to issue bonds, and to contract. K.S.A. 24-108; K.S.A. 24-111; and K.S.A. 24-134. These powers, usually considered governmental in nature, support the finding that the district is a governmental entity for purposes of the Kansas Tort Claims Act.

It is clear that defendant Rossville Drainage District, if a private person, would be liable under the law of Kansas for damages caused by flooding of land of a lower riparian landowner. This was the holding in Dougan v. Rossville Drainage District, 2 Kan.App.2d 125, Syl. pp 1, 2, and 3, 575 P.2d 1316. Kansas has adopted the rule of law that an upper proprietor of land may not gather and...