Larimore v. Miller
| Decision Date | 03 July 1908 |
| Docket Number | 15,610 |
| Citation | 96 P. 852,78 Kan. 459 |
| Parties | COMFORT H. LARIMORE v. JOHN C. MILLER |
| Court | Kansas Supreme Court |
Decided July, 1908.
Error from Clay district court; SAM KIMBLE, judge.
Judgment reversed and cause remanded.
SYLLABUS BY THE COURT.
1. PARTIES--Defect--Demurrer to Evidence. The question of a defect of parties defendant can not be raised by a demurrer to the plaintiff's evidence; and where such a demurrer has been sustained, and this court on review is of the opinion that there was some evidence to support all the essential allegations of the petition, the ruling will be reversed, notwithstanding it may appear that a final judgment for the plaintiff could not rightfully have been rendered without the bringing in of additional parties.
2. WATERCOURSES--Evidence. The evidence examined and held to have some tendency to show the existence of a watercourse.
F. P Harkness, C. C. Coleman, and F. L. Williams, for plaintiff in error.
R. C. Miller, and S. H. Hamilton, for defendant in error.
Comfort H. Larimore brought an action against John C. Miller charging him with obstructing a natural watercourse flowing from her land to his, and asking for damages for injury thereby occasioned to her crops and for a mandatory injunction for the removal of the obstruction. A demurrer to the evidence of the plaintiff was sustained, and she prosecutes error.
The principal controversy is whether there was any evidence tending to show the existence of a watercourse at the point on the defendant's land where he erected an embankment. The plaintiff's land, which measures a half mile from north to south, lies half a mile north of the defendant's. She claims that a watercourse comes down from the north and crosses her land and the intervening tract to that of the defendant, over which it extends, discharging into the Republican river. The evidence clearly tended to establish that a stream of water fed in part by springs and in part by the drainage from a considerable area, and having all the essential attributes of a watercourse, flows from the north toward the plaintiff's land. The defendant practically concedes this, but asserts that the evidence not only fails to show that the stream retains its character as a watercourse until it reaches his land but discloses affirmatively that it loses that character by spreading out over level ground far above his northern boundary.
It is not necessary to review the evidence in detail. There was testimony that the stream referred to, which some of the witnesses called a creek, crosses the plaintiff's land and the intervening tract and goes upon the land of the defendant; that there is a depression for the full length of this course, through which the water at times flows, and which was variously spoken of as a "draw," a "ravine," a "gully," a "ditch," and a "channel" (the witness who used that term saying he meant by it "a place where water runs--a low place with banks on each side"); that when there is no water in the stream one can tell where its course and its banks are; that it then looks "just like any creek that had went dry in the dry spell." Some of these statements were modified and explained upon cross-examination so far as to impair their force, but not so far as to eliminate them altogether. There was also testimony of a contrary tendency, but it was not given by the plaintiff herself; and, even if it was absolutely inconsistent with the existence of a watercourse on the defendant's land, it only presented an issue of fact to be determined upon conflicting evidence. It did not justify a decision as a matter of law that there was an entire failure to support the allegations of the petition.
The defendant was called by the plaintiff as a witness. He testified that the embankment sought to be enjoined was erected, in pursuance of an agreement with him by two other landowners whose property was to be benefited by it--he furnishing the land and they doing the work. He now contends that as these other persons were interested in the subject-matter of the litigation and as their rights would be affected by the judgment their presence was necessary to a determination of the controversy, and their absence warranted the court in sustaining the demurrer to the evidence. In support of this contention he cites State of Kansas v....
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