Johnson v. Board of County Com'rs of Pratt County, 71419

• Citation: 21 Kan.App.2d 76,897 P.2d 169
• Decision Date: 31 May 1995
• Docket Number: No. 71419,71419
• Parties: Oneita JOHNSON and Clara Johnson, Plaintiffs/Appellants/Cross-Appellees, v. The BOARD OF COUNTY COMMISSIONERS OF PRATT COUNTY, et al., Defendants/Appellees/Cross-Appellants, and Kansas Department of Transportation, Third-Party Defendant/Appellee.
• Court: Court of Appeals of Kansas

Page 169

897 P.2d 169

21 Kan.App.2d 76

Oneita JOHNSON and Clara Johnson Plaintiffs/Appellants/Cross-Appellees, v. The BOARD OF COUNTY COMMISSIONERS OF PRATT COUNTY, et al Defendants/Appellees/Cross-Appellants and Kansas Department of Transportation, Third-Party Defendant/Appellee.

No. 71419.

Court of Appeals of Kansas.

May 31, 1995.

Review Granted July 14, 1995.

Syllabus by the Court

1. The owner of property on the bank of a watercourse has a right to build barriers and confine the waters to the channel of the stream, but he or she cannot build and maintain a structure which will change the channel or project the waters against or upon the property of others in such a way as will result in substantial injury to such property. The party building the structure must use reasonable care to avoid unnecessary injury.

2. Water that overflows the banks of a river during ordinary floods and then flows over lowlands or valley within the general course of the stream before returning to the stream farther down its course is water of the stream, not surface water.

3. A stream does not lose the attributes of a watercourse by the fact that a part of its channel may have been artificially created. The straightening of a crooked watercourse in order to facilitate the flow and avoid the flooding of bordering lands is not uncommon. The diversion of a stream by substituting an artificial channel for part of a natural one, by common consent, running in the same general direction, which has existed for a considerable time, may have the characteristics of a watercourse, to which riparian rights would attach.

4. Under the facts presented here, which must be taken as true for purposes of summary judgment, the watercourse as altered by the old bridge that was in place for 62 years is treated as the natural watercourse. When defendants designed and built a structure, the new bridge, that changed the natural channel of the watercourse or projected its waters onto plaintiffs' property in a way that might cause damage, defendants had a duty to use reasonable care to avoid unnecessary damage to plaintiffs' property.

5. One who undertakes, gratuitously or for consideration, to render services to another which he or she should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from failure to exercise reasonable care to perform his or her undertaking, if failure to exercise such care increases the risk of such harm, or the harm is suffered because of the other's reliance upon the undertaking.

6. One who undertakes, gratuitously or for consideration, to render services to another which he or she should recognize as necessary for the protection of a third person or his or her things, is subject to liability to the third person for physical harm resulting from failure to exercise reasonable care to perform his or her undertaking, if failure to exercise such care increases the risk of such harm, or he or she has undertaken to perform a duty owed by the other to the third person, or the harm is suffered because of the other's reliance upon the undertaking.

7. When the injury from flooding is recurring or continuing in nature, the limitations period starts to run only when the land is actually harmed by the flood, and each injury causes a new cause of action to accrue. When the amount of future damages likely to be caused by recurrent flooding cannot be determined or estimated, the damaged party is not required to bring a single action for both past and future damages.

8. A cause of action for negligence does not accrue until plaintiff knows or has reason to know that a substantial injury has been suffered and that defendant's negligence is the cause of the injury.

9. A governmental entity is not liable for damages resulting from the plan or design for the construction of or an improvement to public property, either in its original construction or any improvement thereto, if the plan or design is approved in advance of the construction or improvement by the governing body of the governmental entity or some other body or employee exercising authority to give such approval and if the plan or design was prepared in conformity with the generally recognized and prevailing standards in existence at the time such plan or design was prepared.

Keith Renner, of Barnett, Yockers, & Renner, P.A., Wakarusa, for appellants/cross-appellees.

Allen C. Glendenning, of Watkins, Calcara, Rondeau & Friedeman, Chtd., Great Bend, for appellees/cross-appellants the Bd. of Pratt County Com'rs, et al.

J. Stan Sexton and John A. O'Leary, of Hampton, Royce, Engleman & Nelson, L.C., Salina, for appellee/cross-appellant Mid-Continent Engineers.

Theresa A. Pasek, Staff Atty., and Michael B. Rees, Chief Counsel, for appellee Kansas Dept. of Transp.

Before BRISCOE, C.J., and RULON and GREEN, JJ.

BRISCOE, Chief Judge:

Oneita and Clara Johnson appeal from the trial court's entry of summary judgment that dismissed their claims for damages to their real estate from river flooding, which they contend was caused by the design and construction of a new bridge upstream from their properties.

The Johnsons own and live on adjoining pieces of real estate on the Ninnescah River in Pratt County, Kansas. The river runs from the west to the east, passing first through Clara's 13 acres and then through Oneita's 20 acres. Oneita's and Clara's homes are on the north side of the river. On this part of the river, the north bank is the steeper bank, and a flood plain lies to the south. A county road runs north-south along the western boundary of Clara's property and crosses the river at the bridge that is the subject of this action.

The bridge was built in 1988, replacing a wooden bridge that had been in place for at least 62 years. The old bridge was approximately 57 feet long and was inadequate to accommodate water from a 25-year flood. In fact, flood waters were frequently diverted to the flood plain to the south. The flood water would cover the south approach road and then flow back into the river channel. Although the river flooded every year, it had not caused any substantial erosion of the north bank along the Johnsons' property.

In the mid-1980s, the Board of County Commissioners of Pratt County (County) decided to replace the old bridge and hired Mid-Continent Engineers (MCE) to design the new bridge and oversee its construction. Acting as the County's agent to obtain federal highway funds, the Kansas Department of Transportation (KDOT) approved the plans and accepted the completed project. By contract, KDOT was responsible for insuring compliance with applicable regulations. KDOT obtained no permit for a river channel alteration because KDOT did not believe one was needed.

As required by state and federal standards, the new bridge was designed to accommodate a 25-year flood and to raise the 100-year flood level upstream by no more than a foot. The new bridge is 142 feet long and is two feet higher than the old bridge. As part of the bridge project, 34 trees along the banks were removed, the river channel was widened and moved south, and the south approach road was raised two to three feet higher for a distance of about 600 feet. As a result, under flood conditions, much less water is diverted to the flood plain, and two and a half times more water passes under the new bridge, although it passes more slowly.

In July 1988, shortly after completion of the bridge, heavy rain fell in the area. The river flooded and washed out a 15-foot strip of Oneita's land on the north bank of the river, encroaching toward her barn and washing away several trees. A two- or three-foot strip of Clara's land on the north bank also washed out. Oneita believed the new bridge caused the erosion of her property. She retained an attorney and requested that the County place riprap along the north bank to prevent further erosion. The County refused because MCE advised it was not necessary; however, one county commissioner assured Oneita they would take care of the problem and would not let a flood take her barn. In an attempt to prevent further erosion of Oneita's property, and at MCE's recommendation, the County straightened the channel and removed some trees. Although Oneita thought the County should have riprapped the bank, she decided to trust the County and, as her lawyer put it, deferred to its "expertise." Oneita took no further action to seek redress for the property damage that had occurred.

In April 1991, more flooding occurred, washing out a strip of land approximately 50 feet deep along the north bank of Clara's property and a strip 20 feet deep on Oneita's property. Both Oneita and Clara were worried that further flooding would endanger their homes.

The Johnsons complained to the County, but the County responded that it was not responsible for the damage or for taking any preventive measures. The Johnsons also demanded that MCE take action to prevent further damage. In June 1991, the Division of Water Resources (Division) informed the County that because no channel alteration permit had been obtained, as required by the Obstructions in Streams Act, K.S.A. 82a-301 et seq., it must either apply for an after-the-fact permit or remove any obstructions from the stream channel and return the stream to its natural condition. The Division warned that failure to do so would subject the County to criminal penalties and could render the County liable to landowners for damages.

The County filed an application for a permit. In February 1992, the Division determined it would not issue a permit unless the bridge project was modified to prevent erosion downstream, or the County presented an engineering analysis showing that modification was not required to prevent erosion. In April 1993, the Division issued a permit, subject to the condition that erosion of the north bank downstream from the...