Murphy v. Township

• Decision Date: 07 June 1913
• Docket Number: 18,025
• Citation: 89 Kan. 760,133 P. 169
• Parties: JOHN MURPHY, Appellant, v. FAIRMOUNT TOWNSHIP et al., Appellees
• Court: Kansas Supreme Court

133 P. 169

89 Kan. 760

JOHN MURPHY, Appellant, v. FAIRMOUNT TOWNSHIP et al., Appellees

No. 18,025

Supreme Court of Kansas

June 7, 1913

Decided January, 1913.

Appeal from Leavenworth district court.

Ruling reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

HIGHWAYS -- Insufficient Culvert -- Nuisance -- May be Abated. The commissioners of highways are vested with power to exercise their judgment and discretion in planning and constructing a culvert. But when such culvert has been constructed with an opening so insufficient that surface water is thrown back upon the land of an abutting owner to his repeated damage rendering the structure a continuing nuisance, it is the duty of such commissioners, upon proper notice and demand, to abate the same by remedying the defect, and upon failure they will be required so to do by judicial action.

Arthur M. Jackson, of Leavenworth, for the appellant.

Lee Bond, and M. N. McNaughton, both of Leavenworth, for the appellees.

OPINION

WEST J.:

The plaintiff sued the township and township officers to recover damages alleged to have been caused by overflow on account of a culvert constructed with an insufficient passageway for water, and also prayed that the defendants be permanently enjoined from maintaining such culvert in its present defective condition. A demurrer to the plaintiff's evidence was sustained, and the defendants electing not to introduce any testimony the injunction was denied and the plaintiff appeals.

The question of damages is ruled by Fisher v. Township, 87 Kan. 674, 125 P. 94, and cases there cited, holding that subordinate agents of the state are not, under the circumstances here shown, liable for injuries caused by their negligence.

The plaintiff insists, however, that he is entitled to an injunction on the theory that the township and its officers should not be allowed to maintain a culvert with an opening so small that damages from overflow are likely to occur from time to time. The defendants insist that there was no testimony proving the danger of such injury and that the plaintiff, without protest, permitted the work to go ahead and the money for the culvert to be expended and should not now be heard to demand destruction and rebuilding.

The plaintiff testified that the water backed up above the culvert and extended about twenty rods north thereof, ran over the road and down across his land, and had cut a channel thirty or forty feet from the main channel, which started in 1909, after the building of the culvert; that in May, 1909, when it was raining, half of the water was not going under the culvert or into the main channel until after it backed up and flowed over the road north of the culvert; that to his knowledge the water had come across nine times since the culvert had been built, the rains at these times being ordinary ones; that he had no trouble with the water before the culvert was put in except once, in 1907, when trouble arose from an obstruction in a ditch; that when there was a wooden bridge at the place before the culvert was constructed it had about three times the capacity; that he never lost any crops before the culvert was built; that since its construction about a foot of the surface had been washed off over about four acres. A civil engineer, who had been county surveyor, testified that the area in the opening of the culvert was thirty-nine square feet, while the ditch on the lower side was two hundred square feet in area; that the drainage area above the culvert is about four hundred acres, and that to drain six hundred forty acres the opening should be one hundred square feet. Other witnesses testified as to the overflow and damage.

As to the right of plaintiff to maintain injunction, one theory is that the highway commissioners act only as a local branch of the state government, and not being convicted of fraud, they are not liable for having exercised their judgment in reference to the size of the opening in the culvert. The other theory is that the landowner rightfully presumed that the township officers would not only do their duty free from fraud, but free from patent blunders and mistakes in engineering, so that the culvert would not amount to a continuing nuisance to him; that having a right thus to assume, he naturally and properly refrained from interfering with the progress of the work and made no complaint until it was ascertained that the opening was so small that the culvert necessarily brought upon him serious damage, which damage must continue to occur so long as the structure remains in its present inadequate condition; that although he may not under the settled rules of law be entitled to recover damages for the injuries already sustained, there is no reason why he may not enjoin the continuance of such nuisance.

In Oliphant v. Comm'rs of Atchison Co., 18 Kan. 386, a purchaser of land over which a road was used and traveled but which he claimed had never been legally appropriated to public use attempted to fence up such road, when the authorities resisted his attempt, and it was held that injunction was a proper remedy to restrain their further interference. In Township of Quincy v. Sheehan, 48 Kan. 620, 29 P. 1084, holding that a township is not liable under the statute for loss arising from failure to erect and maintain watermarks at fords, on the ground that such liability could only be created by the city, it was said:

"The neglect of the overseer to perform these duties may create a liability against him for injuries resulting from his failure; but we do not think that it was intended to impute such negligence to the township nor impose a liability upon the township." (p. 623.)

It will be noticed that in this case the township is the party defendant, and also the board of trustees and board of commissioners of highways. In Shanks v. Pearson, 66 Kan. 168, 71 P. 252, it was decided that road overseers while acting within the scope of their duty have a very broad discretion, with which the courts will not interfere except in cases of fraud or some "manifest or gross injustice which would constitute an abuse of discretion." (Syl. P 1.) It was also held that in an action to enjoin certain repairs about to be made on a public road it was competent to show that they would operate as a special injury to another and were being made to subserve private and personal ends as tending to show bad faith. In the opinion it was said:

"If there are several methods of repairing a road, the overseer may select any one of them that is within reason, although another may be preferable. The general rule is that when such officers act within the scope of the power conferred on them there will be no judicial interference with their discretion and judgment, in the absence of fraud or some manifest or gross injustice which would constitute an abuse of discretion." (p. 170.)

In Silver v. Clay County, 76 Kan. 228, 91 P. 55, an action for damages for the removal of a bridge by the county commissioners, while denying the relief sought, it was said:

"According to the allegations of the petition the removal of the bridge by the county commissioners was illegal and imposed great hardship upon the plaintiff, and he would, perhaps, under the authority of Greeley Township v. Comm'rs of Saline Co., 26 Kan. 510, 514, have been entitled to enjoin the act, or may even yet not be without a remedy." (p. 229.)

In Shawnee County v. Jacobs, 79 Kan. 76, 99 P. 817, it was alleged that the county board...