Hornor v. City of Baxter Springs
| Decision Date | 07 June 1924 |
| Docket Number | 25,247 |
| Citation | 226 P. 779,116 Kan. 288 |
| Parties | A. S. HORNOR et al., Appellants, v. CITY OF BAXTER SPRINGS, Appellee |
| Court | Kansas Supreme Court |
Decided January, 1924
Appeal from Cherokee district court; FRANK W. Boss, judge.
Judgment reversed and cause remanded.
SYLLABUS BY THE COURT.
1. WATERCOURSE--Partly Natural--Partly Artificial--Attributes of a Natural Watercourse. A watercourse which is partly artificial--that is, partly made by the action of flowing water and partly by the hand of man--does not necessarily deprive the stream of the attributes of a watercourse, nor prevent the application of the rules thereto which apply to other watercourses.
2. PRACTICE, TRIAL COURT--Motion for New Trial--Motion for Judgment on Special Findings. Where a party files a motion stating grounds for a new trial and also a ground for judgment on the special findings, it may be regarded as two motions, and when the court acts on the latter and it is determined adversely it may then consider and determine whether or not the grounds stated for a new trial exist.
Archie D. Neale, of Chetopa, for the appellants.
C. E Rumery, of Baxter Springs, for the appellee.
This is an appeal from a judgment awarding the plaintiffs damages for the obstruction, by the defendant, of a watercourse, which caused injury to plaintiff's property.
It was alleged that the plaintiffs owned lots, in the city of Baxter Springs, which sloped toward a draw and generally recognized watercourse, the water in which flowed into a river. It was averred that the city built a storm sewer in an alley adjoining plaintiff's lots, and in doing so threw up an embankment in the watercourse, leaving no outlet for the water, so that water was thrown back upon plaintiff's lots, greatly damaging them, for which plaintiff asked a recovery. The answer of the city was a general denial, with a specific denial that the construction of the sewer had damaged plaintiff's property in the manner alleged or in any other manner. Trial was had with a jury, which resulted in a verdict in favor of plaintiffs for $ 300, and with it the following special findings:
In a motion filed by the defendant it asked for judgment in its favor, notwithstanding the general verdict, assigning for grounds: (1) excessive verdict; (2) verdict not supported by the evidence; (3) verdict contrary to the evidence; and (4) verdict in conflict with the special findings. The excessive award and the attacks on the evidence were grounds for a new trial, but manifestly not for judgment on the special findings. Obviously the court did not act on the first three grounds of the motion, as the record recites that the motion for judgment on the special findings came on for hearing, and the court sustained the motion and rendered judgment against the plaintiffs and in favor of the defendant on the special findings. Evidently no consideration was given to the evidence, and it further appears that a motion of defendant made at the close of plaintiffs' evidence to direct a verdict in its favor because plaintiffs' evidence was insufficient to warrant a recovery was denied by the court. The evidence produced has not been brought up on this appeal. The record consists only of the pleadings, instructions, findings and judgment, and hence the only question presented is, Do the special findings overthrow the general verdict and warrant a judgment in favor of the defendant? The jury have found, in effect, that the water obstructed flows in a watercourse, that the sewer which caused the obstruction was negligently constructed, that the negligence of the city consisted in placing the sewer in the watercourse, and that the draw or channel through which the water...
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Johnson v. Board of County Com'rs of Pratt County
...source, if it has the elements named, including that of permanence, it is to be regarded as a watercourse." Hornor v. City of Baxter Springs, 116 Kan. 288, 289-90, 226 P. 779 (1924). If water continues to flow in the same direction while outside the banks of a stream, returning upon the sub......
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Beck v. Missouri Valley Drainage Dist.
...There is authority that such a depression or drain may be a natural water course, although in part artificial. Hornor v. City of Baxter Springs, 116 Kan. 288, 226 P. 779; Freeman v. Weeks, 45 Mich. 335, 7 N. W. Although the record does not disclose whether this ditch was originally construc......
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Scranton-Pascagoula Realty Co. v. City of Pascagoula
... ... 174; Winchester v. Capron, 63 ... N.H. 605, 56 Am. Rep. 554; Hamby v. Dawson Springs, ... 12 L.R.A. (N.S.) 1164; Motoramp Garage Co. v. City of ... Tacoma, 42 A.L.R. 886, 241 P. 16; ... prevent application thereto of rules applicable to other ... watercourses ... Hornor ... v. City of Baxter Springs, 226 P. 779 ... There ... is no right on the part of a ... ...
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U.S. v. 1,629.6 Acres of Land, More or Less, in Sussex County, State of Del.
...applicable in cases where there is no apparent reliance upon the artificial waterway by the party invoking it. Hornor v. City of Baxter Springs, 116 Kan. 288, 226 P. 779 (1924); Mo. Pac. R.R. Co. v. Keys, 55 Kan. 205, 40 P. 275 (1895). However, even these cases can be distinguished from the......