Garrett v. Beers

• Decision Date: 12 February 1916
• Docket Number: 19,912
• Citation: 97 Kan. 255,155 P. 2
• Parties: CORA GARRETT AND JAMES GARRETT, Appellees, v. H. M. BEERS, Appellant
• Court: Kansas Supreme Court

155 P. 2

97 Kan. 255

CORA GARRETT AND JAMES GARRETT, Appellees, v. H. M. BEERS, Appellant

No. 19,912

Supreme Court of Kansas

February 12, 1916

Decided, January, 1916.

Appeal from Wyandotte district court, division No. 2; FRANK D HUTCHINGS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CHANGE OF WATERCOURSE--Damages--Proper Party Plaintiff. Where a plaintiff has acquired a town lot and has entered into possession under a contract of purchase, he is the owner of it so far as concerns his right to maintain an action for damages to the property.

2. EXTRAORDINARY FLOODS--Damages--"Act of God." An "act of God" as known in the law is an irresistible superhuman cause, such as no reasonable human foresight, prudence, diligence and care can anticipate and prevent.

3. SAME--Heavy and Protracted Rains--Not within Definition of "Act of God." A flood caused by a heavy and protracted rain no greater than had fallen "many a time before" within the duration of a man's experience is not such "an act of God" as will excuse one who changes the natural course of a stream into a new channel which is inadequate to carry off its waters without damage to neighboring property.

4. TITLE--In Name of Wife--Husband Liable for Changing Watercourse. Although the title to property may be vested in a wife, her husband may subject himself to liability as its owner by acts of dominion and control over it.

5. SAME--Acts Rendering Husband Liable for Changing Watercourse. Where a husband's business firm contributed a large sum of money towards the purchase of a tract of land and the husband joined in platting it as a city addition, paid the taxes from year to year, changed the course of a stream which flowed through it, advertised lots in the addition, sold such lots and received payments therefor and gave receipts in his own name, he may be liable as owner for the negligent manner of changing the stream and its consequences although the title to the property was taken and held in the name of his wife.

6. CHANGING WATERCOURSE--Liability for Damages. Where for his own purposes the owner of land changes the course of a stream, he must use due care to provide the stream with a new channel of sufficient capacity to carry off not only the ordinary flow of water but also such high waters as may reasonably be anticipated from heavy and protracted rains and which the old channel was capable of carrying away without damage to neighboring property.

T. F. Railsback, of Kansas City, and Glenn R. Donaldson, of Kansas City, Mo., for the appellant.

David F. Carson, Claude L. Peterson, and William Drennan, all of Kansas City, for the appellees.

OPINION

DAWSON, J.:

The appellees brought this action in the district court of Wyandotte county against the appellant, in which they alleged their ownership of a certain lot in a suburb of Kansas City; that the defendant for long prior to May, 1910, had owned certain lands known as Spring Valley Addition adjacent thereto on the west; that prior to May, 1910, there was a running stream which flowed through the defendant's lands and along the west side of the plaintiffs' lot; that the defendant carelessly and negligently filled up the channel of the stream so that it flowed directly east to plaintiffs' lot and away from its natural channel, and that in May, 1910, the waters of the stream flowed over the plaintiffs' lot and damaged their building, fences, household goods and clothing to the extent of $ 400, and permanently depreciated their property in the sum of $ 600. They asked judgment for $ 1000.

Defendant's answer was a general denial. The jury made special findings of fact, and awarded damages to plaintiffs in the sum of $ 475. The court overruled defendant's motion for a new trial upon condition that the plaintiffs would remit $ 200 on the verdict. This the plaintiffs did; and judgment was rendered against defendant accordingly.

The defendant appeals and assigns error: (1) in overruling defendant's demurrer to the evidence; (2) in refusing certain instructions; (3) in overruling defendant's motion for judgment; and (4) in refusing judgment on the special findings.

1. It is urged that the demurrer should have been sustained because the plaintiffs were not the owners of the property. There can be no cavil about their ownership of the household goods and clothing. Touching their ownership of the realty, it was shown that the plaintiffs had bought the land and entered into possession under a contract of purchase in 1907, although they did not receive a warranty deed to the realty until October, 1910, some months after the damages alleged. Ordinarily one who buys real estate and enters into possession under a contract of purchase is the owner of it against all comers, excepting possibly the vendor holding the legal title, and may maintain an action as owner for damages to the property. (Civ. Code, § 25; St. L. L. & D. Rld. Co. v. Wilder, 17 Kan. 239, syl. P 6; Mooney v. Olsen, 21 Kan. 691; Burke v. Johnson, 37 Kan. 337, 15 P. 204; Goodrich v. Comm'rs of Atchison Co., 47 Kan. 355, 361, 27 P. 1006; Christy v. Richolson, 48 Kan. 177, 29 P. 398; Mulvane v. Lumber Co., 56 Kan. 675, 44 P. 613; Steele v. Dye, 81 Kan. 286, 290, 105 P. 700; Banchor v. Proctor, 88 Kan. 510, 129 P. 526; 25 Cyc. 1549; 6 Words and Phrases, p. 5134.)

Defendant also contends that the waters which flooded plaintiffs' property...