Dougan v. Rossville Drainage Dist.
| Decision Date | 15 December 2000 |
| Docket Number | No. 83,543.,83,543. |
| Citation | 270 Kan. 468,15 P.3d 338 |
| Parties | FRANK DOUGAN, Appellee, v. ROSSVILLE DRAINAGE DISTRICT, Appellant. |
| Court | Kansas Supreme Court |
Robert W. Coykendall, of Morris, Laing, Evans, Brock & Kennedy, Chartered, of Wichita, argued the cause, and Joseph W. Kennedy, of the same firm, was with him on the briefs for appellant.
James C. Heathman, of Heathman Law Office, of Topeka, argued the cause and was on the brief for appellee.
The opinion of the court was delivered by
Drainage district appeals landowner's jury award for damages resulting from a 1993 flood. Appellant claims (1) the landowner's claim was barred by the passage of time; (2) the evidence was insufficient to support the jury's verdict; (3) the Kansas Tort Claims Act barred landowner's action; (4) the court erred in refusing to weigh evidence and determine if the verdict was contrary to the evidence; and (5) the court erred in not enforcing a settlement agreement.
Frank Dougan's land lies between the Kansas River and Silver Lake in Shawnee County, Kansas. Silver Lake is an oxbow lake formed when the Kansas River changed its course in the last century. Neither Dougan's land nor Silver Lake lie within the Rossville Drainage District (District). The District, formed about 1905 to maintain levees, ditches, and waterways within the District, collects and diverts water through the Rossville Drainage Ditch (Rossville Drain) into Silver Lake. The District constructed and maintains the waterway that drains lesser creeks located east and north of Rossville, Kansas. See Dougan v. Rossville Drainage District, 2 Kan. App.2d 125, 126, 575 P.2d 1316,rev. denied 225 Kan. 843 (1978) (Dougan II).
Dougan's land has flooded five times from 1951 to 1993. For the floods occurring since 1973, Dougan has brought three suits against the District to recover damages caused by flooding. The basis for the claims made in this suit and the relationship of Dougan and the District are reported in opinions found at Dougan v. Rossville Drainage District, 243 Kan. 315, 757 P.2d 272 (1988) (Dougan III); Dougan II,
2 Kan. App.2d 125; and Dougan v. Shawnee County Comm'rs, 141 Kan. 554, 43 P.2d 223 (1935) (Dougan I). A diagram of the area is found in Dougan I, 141 Kan. at 557, and the facts setting forth the location of Dougan's land with respect to the District are discussed in detail in Dougan II, 2 Kan. App. 2d at 126-27.
In Dougan I, II, and III, the Kansas appellate courts have previously determined that the District is "an upper proprietor of land" to Dougan's property and as such may not gather and divert surface water from its natural course of flowage that exceeds the carrying capacity of the natural watercourse in which the surface water is deposited if the diversion of the water causes damages of a serious and significant nature to a lower landowner. 243 Kan. at 319. The alteration of natural water flow may create a nuisance. 243 Kan. at 319.
This case arises from the 1993 flooding of Dougan's property. In July 1993, approximately 18 inches of rain fell in the area served by the Rossville Drain. When the water level in the Kansas River rose higher than the water from the Silver Lake outlet, Dougan closed his floodgate to protect his property from flooding. A breach developed in the levee along the Kansas River upstream from Dougan's property. Dougan's property flooded. The parties' experts disagree as to whether the flooding was from excess rainfall, inflow through the drainage system, water coming beneath the breach in the river levee, or an elevation in the water table. On April 12, 1995, Dougan filed claims for July 1993 flood damage against the District, alleging negligence, trespass, and nuisance. Dougan contended that his farmland was flooded due to the operation and maintenance of the Rossville Drain. He asserted that the District gathered and diverted surface water from its natural course into the Rossville Drain and that the diverted flow exceeded the capacity of the ditch, causing water to be deposited on Dougan's property. Dougan alleged that the District's construction, maintenance, and use of the Rossville Drain was in violation of common-law restrictions on collection and diversion of flood waters, constituting a nuisance and a trespass. Dougan requested compensatory damages, and damages for loss of crops, his damaged levee system, and the decrease in his property value.
The District answered that Dougan's claims were barred by the statute of limitations; Dougan's damages were caused by his acts or the acts of persons other than the District; Dougan assumed the risk of flooding; and Dougan's land flooded because of a natural phenomenon and not as the result of its misconduct. In addition, the District contended that Dougan's claims are barred by the Tort Claims Act, K.S.A. 75-6101, specifically the Act's discretionary function exception to liability. The District also filed a third-party petition against Tri-County Drainage District No. 1 (Tri-County), alleging that Tri-County was liable to the District for any amount Dougan recovered from the District.
On November 2, 1998, the case was tried to a jury. The jury returned a verdict for Dougan on the theories of intentional nuisance, negligent nuisance, trespass, and violation of the District's duty as an upper riparian owner of land. The jury found that Dougan had not suffered permanent damages to his property. The jury then determined that the District was responsible for 55 percent of the damages caused to Dougan's levee and 82 percent of the damages to Dougan's crops and awarded Dougan $103,125 for levee damage and $27,876 for crop loss, which totaled $131,001. The jury also found that Tri-County was responsible for 18 percent of the damages to Dougan's crops, $6,119, and 0 percent of the damage to the levee. The District appealed to the Kansas Court of Appeals. The District's motion to transfer to this court pursuant to K.S.A. 20-3018(c) was granted. Tri-County is not a party to this appeal.
The interpretation and application of a statute of limitations is a question of law for which the court's review is unlimited. Likewise, the court's review of conclusions of law is unlimited. Brown v. State, 261 Kan. 6, 8, 927 P.2d 938 (1996).
The district court noted that the statute of limitations (or repose) applicable was dependent on whether the prior damages to Dougan's property were permanent or temporary. The jury was instructed as to the difference between permanent and temporary damages to land and requested to determine whether, during the 1993 flooding or at a time prior to the 1993 flooding, Dougan had suffered permanent damages to his property. The jury determined that Dougan's property had not previously suffered permanent damage.
The District contends that the history of repeated flooding to Dougan's land, in 1951, 1967, 1973, and 1983—about once every 8 years, mandated that Dougan had suffered permanent damages because the pattern of flooding allowed Dougan to anticipate the frequency and extent of flooding and to calculate permanent damages. The District concludes that, under the circumstances, Dougan was required to assert a claim for permanent damages following the 1982 flood; therefore, the present action for temporary damages is barred by the statute of limitations.
Dougan argues that the District's failure to take corrective measures, despite knowledge of the risk of flooding resulting from the District's diversion of surface water from its natural course, constitutes a wrongful or negligent act. Dougan asserts that the District has wrongly continued its use and maintenance of the drainage ditch and has continuously failed to take measures to reduce or eliminate the risk of trespass or nuisance of occasional flooding of his lands.
Whether the injury was permanent or temporary is the determinative factor in commencing the statute of limitations in damage actions from flooding caused by construction. Isnard v. City of Coffeyville, 260 Kan. 2, 5, 917 P.2d 882 (1996). Where lands are subject to overflow by reason of the erection and maintenance of a permanent structure, the owner who has not been compensated for the appropriation of his or her lands may, if he or she sees fit, maintain an action to recover all damages occasioned to the lands present and prospective, and such cause of action accrues at the time of the appropriation. K.S.A. 60-513(b); see Isnard, 260 Kan. at 5, 10-11.
Temporary damages limit recovery for injury that is intermittent and occasional and when the cause of the injury is remediable, removable, or abatable. Damages are awarded on the theory that the cause of the injury may and will be terminated. Temporary damages are defined as damages to real estate which are recoverable from time to time as they occur from injury. Isnard, 260 Kan. at 7. If the damages are temporary and the injury abatable, the general rule is that a new cause of action accrues with each new injury, at least until the injury becomes permanent. In such a case, the 2-year statute of limitations commences with each new temporary injury. Gowing v. McCandless, 219 Kan. 140, 145, 547 P.2d 338 (1976).
Permanent damages are awarded on the theory that the cause of an injury is fixed and that the property will always remain subject to the injury. Permanent damages are damages for the entire injury done—past, present, and prospective—and, generally speaking, those which are practically irremediable. If an injury is permanent in character, all the damages caused thereby, whether past, present, or prospective, must be recovered in a single action. Isnard, 260 Kan. at 7. If a plaintiff suffers permanent damages, the cause of action begins to run at the time of the damage; therefore, the plaintiff must bring his or her tort claim within 2 years after the injury is reasonably ascertainable. Thierer v. Board of...
To continue reading
Request your trial
-
Williams v. Lawton, 97,132.
...the litigation, and generally we do not favor interlocutory appeals of motions for a new trial. See Dougan v. Rossville Drainage Dist., 270 Kan. 468, 485-86, 15 P.3d 338 (2000). Nevertheless, because our standard of review is abuse of discretion, we cannot say the Court of Appeals erred in ......
-
Waste Connections of Kan., Inc. v. Ritchie Corp.
...The resulting indefiniteness on the essential term of any agreement is fatal to contract formation. See Dougan v. Rossville Drainage Dist., 270 Kan. 468, 488, 15 P.3d 338 (2000); Augusta Bank & Trust v. Broomfield, 231 Kan. 52, 60, 643 P.2d 100 (1982); Weil & Associates v. Urban Renewal Age......
-
Williams v. Lawton
...60-2102(c). Generally, an order granting a new trial would not be subject to interlocutory review. See Dougan v. Rossville Drainage Dist., 270 Kan. 468, 485, 15 P.3d 338 (2000). Our review of an order in this case should be viewed as one of the narrow exceptions to the rule and solely due t......
-
Duran v. Hyundai Motor America, Inc.
...this amount of damages." 37. See also, e.g., Manus v. Am. Airlines, Inc., 314 F.3d 968, 973 (8th Cir.2003); Dougan v. Rossville Drainage Dist., 270 Kan. 468, 15 P.3d 338, 351 (2000); John Crane, Inc. v. Jones, 650 S.E.2d 851, 858 38. Ms. Cook initially requested $181,237.77 in discretionary......
-
Damage to Real Property: the Lay of the Land
...then the action must be filed within two years of the time the injury became reasonably ascertainable. Dougan v. Rossville Drainage Dist., 270 Kan. 468, 473, 15 P.3d 338 (2000) (citing Thierer v. Bd. of County Comm'rs, 212 Kan. 571, 574, 512 P.2d 343 (1973). Nuisance appears to be the prefe......