Dougan v. Rossville Drainage Dist.

• Decision Date: 17 March 1978
• Docket Number: No. 49012,49012
• Citation: 2 Kan.App.2d 125,575 P.2d 1316
• Parties: L. Frank DOUGAN, Appellant, v. ROSSVILLE DRAINAGE DISTRICT, Appellee.
• Court: Kansas Court of Appeals

Page 1316

575 P.2d 1316

2 Kan.App.2d 125

L. Frank DOUGAN, Appellant, v. ROSSVILLE DRAINAGE DISTRICT, Appellee.

No. 49012.

Court of Appeals of Kansas.

March 17, 1978.

Review Denied May 5, 1978.

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 damages of a serious and sensible nature to a lower landowner.

2. The rule described in the preceding syllabus is followed even though the overflow and damage occurs some distance downstream from the point the upper riparian proprietor discharges the surface water into the natural watercourse.

3. The upper riparian proprietor cannot compel a lower landowner to provide drainage facilities to avoid being flooded by a volume of water in excess of the natural drainage level which the upper landowner has caused to be discharged into the watercourse.

4. An action for permanent damages to farmland as a result of flooding accrues when substantial injury is reasonably ascertainable and the amount of damages is reasonably capable of judicial ascertainment.

5. In an action to recover damages to farmland due to flooding, the record is examined and it is held that under the stipulated facts the injuries sustained by plaintiff within two years of the commencement of this action are not barred by the statute of limitations and the trial court erred in granting summary judgment in favor of defendant.

J. Roger Hendrix, of Marshall, Hawks, McKinney & Hendrix, Topeka, for appellant.

J. A. Babicki, Topeka, for appellee.

Before FOTH, C. J., and ABBOTT and PARKS, JJ.

ABBOTT, Judge:

This is an appeal by L. Frank Dougan, the plaintiff landowner, in an action for damages to plaintiff's property caused by flooding. The trial judge granted summary judgment in favor of the defendant Rossville Drainage District after finding plaintiff's claims to be barred by the statute of limitations. (K.S.A. 60-513.)

The defendant Rossville Drainage District was established as an organized drainage district in 1905 and has operated as such since that time. Shortly after its creation, the defendant constructed a network of ditches and waterways for drainage purposes. During the period from 1942 to 1954, changes and alterations in the system were made by the drainage district without the knowledge and consent of the chief engineer of the Division of Water Resources.

When this action was commenced, the defendant's ditches and waterways collected the surface water drainage from approximately seven thousand acres of land between the towns of Rossville and Silver Lake, Kansas. The water is collected and carried east by by the drainage system where it is deposited into Silver Lake. Plaintiff's land lies to the south of Silver Lake and is not in the defendant drainage district.

Silver Lake is a natural lake and is believed to be an old river bed. It was in existence when the government originally surveyed the area in 1862. (Dougan v. Shawnee County Comm'rs, 141 Kan. 554, 43 P.2d 223.) Water enters the lake from the west and drains from the eastern shore in a southwesterly direction through a natural waterway across plaintiff's property to the Kansas River. The drainage district ends at the western edge of Silver Lake. Neither Silver Lake nor the channel connecting Silver Lake to the Kansas River is in the Rossville Drainage District.

A county road runs east and west across the southern portion of plaintiff's land and across the waterway which drains Silver Lake into the Kansas River when the lake overflows. A floodgate has been installed in a culvert under the county road at its intersection with the waterway. The floodgate, which is on plaintiff's land and is operated by plaintiff, is opened to permit water from Silver Lake to drain into the river when the level of the lake is higher than the river. The floodgate is closed when the level of the river is higher than the lake to prevent river water from backing up into the lake and flooding plaintiff's land. When the floodgate is closed and the lake is overflowing, the lake cannot drain into the river and the extra water from defendant's ditches causes the lake to flood plaintiff's land.

Since 1954, plaintiff's land has been flooded twice in March 1967 and October 1973. The parties have stipulated that on both occasions "the primary source of the flood waters was the Rossville Drainage District." After the 1967 flooding, defendant and the plaintiff's mother (who owned the land at that time) discussed a solution to the problem. As a result of the discussions, defendant dredged the channel connecting Silver Lake to the Kansas River. The defendant drainage district dredged the channel at its own expense even though the channel was not owned by defendant nor within its district. Plaintiff's property was again flooded in October 1973. Plaintiff filed this case on February 11, 1974. Plaintiff requested (1) a permanent injunction enjoining the defendant from discharging water across plaintiff's property, (2) compensation for permanent damages to the real estate and (3) temporary damages for the loss of growing crops.

For purposes of defendant's motion for summary judgment, the parties submitted an agreed statement of facts. The trial judge found that plaintiff's land was permanently damaged in 1967, that the statute of limitations (K.S.A. 60-513(a )(4)) commenced to run in October of that year and hence plaintiff's cause of action was barred. This appeal followed. The sole question presented on appeal is whether plaintiff's claims are barred by the statute of limitations (K.S.A. 60-513(a )(4)). Plaintiff concedes there is an adequate remedy in law and therefore a permanent injunction would not be a proper remedy.

By stipulating to the facts the parties have placed this court in a position where we can determine what is shown by the stipulated facts as readily and as fully as the trial court. (Wallace v. Magie, 214 Kan. 481, 488, 522 P.2d 989.) We will give the benefit of all inferences that may be drawn from the stipulated facts to the party against whom summary judgment is sought. (Timi v. Prescott State Bank, 220 Kan. 377, 386, 553 P.2d 315.)

The question of when a cause of action accrues as a result of a party causing another's land to be flooded has been extensively litigated in Kansas. Not all of the Kansas authority is in harmony. Obviously, each case must be decided on its own facts, giving due regard to established law.

Kansas has adopted the rule of law that 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 damages of a serious and sensible nature to a lower landowner. (Baldwin v. Ohio Township, 70 Kan. 102, 108, 78 P. 424.) Logically, this rule has been followed even though the overflow and damage occurs some distance downstream from the point where the upper riparian...