Krantz v. City of Hutchinson

• Decision Date: 10 July 1948
• Docket Number: 37111.
• Citation: 165 Kan. 449,196 P.2d 227
• Parties: KRANTZ et al. v. CITY OF HUTCHINSON et al.
• Court: Kansas Supreme Court

196 P.2d 227

165 Kan. 449

KRANTZ et al. v. CITY OF HUTCHINSON et al.

No. 37111.

Supreme Court of Kansas

July 10, 1948

Appeal from District Court, Reno County; F. B. Hettinger, Judge.

Action by Robert A. Krantz and another against the City of Hutchinson and another to recover from the city for property damaged from the overflow of flood waters alleged to have resulted from the construction of a dike by the city officials. Judgment sustaining a demurrer to petition by defendant named, and plaintiffs appeal.

Reversed with directions.

HARVEY C. J., and THIELE, J., dissenting.

Syllabus by the Court.

1. Municipalities, creatures of the state, have a dual capacity. In one capacity they serve as an arm of the state and partake of sovereignty. In the second capacity they exercise powers as an individual corporation.

2. The functions of a municipality performed in its sovereign capacity are ordinarily called governmental; those exercised in its individual corporate capacity are commonly called proprietary or municipal.

3. All functions and activities of a municipality not strictly governmental in character are to be classified as proprietary.

4. One distinction frequently stated is that governmental functions of a municipality are performed for the general public, with respect to the common welfare and for the exercise of which it receives no compensation or particular benefit, while its proprietary functions are exercised for some specific benefit or advantage to the corporation or those comprising the local, urban community.

5. In the performance of governmental functions the general rule is that a municipality is not liable for the negligent acts or the ultra vires acts of its officers, agents and employees.

6. In the exercise of its proprietary functions the general rule is that a municipal corporation has the liabilities for the tortious acts of its agents and employees which ordinarily attach to a private corporation.

7. The trend of judicial decisions generally is to restrict rather than to expand the doctrine of municipal immunity.

8. Record examined in an action by property owners outside a city to recover damages from the municipality for damages alleged to have been caused by the construction of a dike more than five miles from the city, by and under the direction of the city commissioners, for the purpose of diverting flood waters from their natural course and thereby to prevent flood damage to property within the city, and with resulting damage to certain property outside the city, and held: the petition stated a cause of action against the city.

Donald C. Martindell, of Hutchinson (William D. P. Carey, Wesley E Brown and Edwin B. Brabets, all of Hutchinson, on the brief), for appellants.

Roy C. Davis, of Hutchinson (Frank S. Hodge, Eugene A. White, Robert Y. Jones and Albert S. Teed, City Atty., all of Hutchinson, on the brief), for appellee.

HOCH Justice.

Plaintiffs owning land in the vicinity of Hutchinson, Kansas, seek to recover from the city for property damage from the overflow of flood waters alleged to have resulted from the construction of a dike by the city officials. The city demurred to the petition on the ground that it did not state a cause of action. The demurrer was sustained and this appeal followed.

The Atchison, Topeka & Santa Fe Railway Company was named as a co-defendant, but inasmuch as the city alone is involved in this appeal, the action will be here treated as one against the city only.

Summarizing, it was alleged in the petition:

Plaintiffs are owners of land, described, in Reno county, a portion of which is bounded by the Arkansas River, a navigable stream; the land lies North and East of the Arkansas River; on or about April 30 and May 1, 1942, a serious flood from the Arkansas River was threatening the city; by virtue of this threatened flood, an emergency arose which seriously threatened to do great and irreparable damage to the streets, buildings and property of the city and to the homes and business property of certain individuals; because of this sudden and unexpected emergency and threatened damage, the board of commissioners of the city, acting in their ministerial capacity and for the sole purpose of protecting the streets and property of the city and residential and business property located therein, subject to flood damage, constructed, through the city's servants and employees, a dike known as the Risley Dike, at a point about two and one-half miles above the land of the plaintiffs near the Arkansas River, and more than five miles from the city limits. The Risley Dike was constructed largely on the Risley land and a portion of it on the Colladay land. The dike was constructed a number of yards back from the bank of the Arkansas River and for a distance of between one-half and three-fourths of a mile. The dike was constructed across what was an ancient waterway and formerly the natural course of the Arkansas River at flood state. Had it not been for the construction of the dike, the high water from the Arkansas River would have flowed through its ancient waterway and natural course in flood time, down the slough, and would have emptied into Cow Creek and would have done irreparable damage to the streets and property of the city, and to many residence and business properties subject to damage, amounting to hundreds of thousands of dollars. The board of commissioners acted in good faith, and for the benefit of the city and its property and to citizens whose property would have been damaged by the flood except for erection of the dike. The city, its inhabitants, and the owners of the property in the city accepted the benefits of such acts of the board of commissioners and benefited thereby in the amount of hundreds of thousands of dollars. The dike was constructed without lawful authority by the city. The dike was constructed to a height of about four feet, in utter disregard of the rights of landowners below the dike. The dike raised the level of flood waters below the dike to a height of about four feet and prevented the flood waters from flowing in their usual flood water course and caused the flood water to flow over and across plaintiffs' land, causing great and serious damage and loss, washing out great holes in the land, damaging crops, fences, and the land itself, which damage and loss would not have occurred had the dike not been constructed. Plaintiffs suffered damage to crops in the amount of $3,200; damage to fences $200; cost of filling in washed holes about $2,000, and permanent damage to plaintiffs' land in the sum of $10,500, or a total of $15,900, all of which was caused by the unlawful construction of the dike.

In September, 1942, Colladay, on whose land part of the dike was erected, filed a claim against the city for damages in the amount of $690, said damages being the flooding of seventy acres of growing corn and damages to alfalfa from flood. In April, 1943, Colladay filed an action in the city court against the city for such damages caused by erection of the dike by the agents of the city. The only service of summons in said action was by delivering a copy to the city clerk, without any showing of the absence of the mayor, and no summons was served on the mayor; the city filed no answer or pleading in the case and on May 6, judgment was rendered against the city for $690 with interest and costs, and thereafter the city paid said judgment and costs in the amount of $744.05. A claim was filed against the city on behalf of the owner of the Risley land for damages by reason of the erection of the dike in the amount of $500 and for $434.73 spent in removing the dike, totalling $934.73. In July, 1943, the administrator of the Risley estate, owner of the land at the time the dike was constructed, filed an action in the city court against the city for damages in the amount of $934.73. No summons was served in said action, but on July 30, 1943, the city attorney entered voluntary appearance for the city and consented to an immediate hearing, and on the same day, without any pleading of any kind having been filed by the city, judgment was rendered against the city for $934.73 with interest and costs, and on January 26, 1945, the city paid said judgment in the amount of $1,021.41. By and through the above procedure the city adopted, ratified and approved the acts of its agents and servants in constructing the dike. The city benefited by the erection of the dike 'in an amount exceeding several times the amount of all of the claims filed against the City of Hutchinson for damages caused by the erection of said Risley Dike.' Within ninety days after they suffered their damage because of the dike, plaintiffs filed a verified claim with the city (copy thereof attached to and made a part of the petition) but the city rejected the claim. Subsequent to the causing of the said damage to plaintiffs' property, the city 'realizing that it had illegally constructed said Dike, removed the same.' Prayer was for recovery of damages in the sum of $15,900.

The order sustaining the city's demurrer followed.

The city contends that the acts of its officers, agents and employees in constructing the dike were ultra vires, and that a municipality is not liable for the ultra vires acts of its officers and employees. The appellants contend that this case falls within exceptions to that general rule; that a city can ratify or adopt such ultra vires acts and that where the ultra vires acts are performed solely for the benefit of the city, and the city reaps the benefits of such acts of its agents, it cannot avoid liability under the doctrine of immunity for ultra vires acts. Appellants further contend that the acts here involved are to be classed as 'proprie...