Perry v. City of Wichita, 38820

• Decision Date: 11 April 1953
• Docket Number: No. 38820,38820
• Citation: 174 Kan. 264,255 P.2d 667
• Parties: PERRY et al. v. CITY OF WICHITA.
• Court: Kansas Supreme Court

Page 667

255 P.2d 667

174 Kan. 264

PERRY et al. v. CITY OF WICHITA.

No. 38820.

Supreme Court of Kansas.

April 11, 1953.

Rehearing Denied May 16, 1953.

Syllabus by the Court.

1. A city is liable in damages for the negligent exercise of proprietary as distinct from governmental functions.

2. It rests solely in the province of the legislature to determine for what acts the state and its governmental subdivisions shall be liable in damages when acting in a governmental capacity.

3. The general rule in this state, subject to exceptions not here involved, is that a city is not liable in damages for negligent acts of its officers or employees when engaged in the exercise of governmental functions, absent a statute expressly imposing liability.

4. The record in an action by owners of a residence property, located outside the city limits and near a natural watercourse which runs through a portion of the city, to recover damages to property from the city by reason of overflow of plaintiffs' ground on a particular day due to an increase in the amount of water and the rapidity of its flow in such watercourse, caused by development of an adequate drainage system in that part of the city examined, considered and held:

(a) The part of the city through which the natural watercourse ran constituted a drainage basin (b) an improved drainage system in such basin was necessary for the public welfare;

(c) surface waters from the drainage basin were directed into the natural watercourse;

(d) there was no evidence the city acted negligently in the manner in which it developed the drainage system;

(e) all acts performed by the city in connection with the development of the drainage system were expressly authorized by statute;

(f) the acts of the city constituted exercise of governmental functions; and

(g) defendant's demurrer to plaintiffs' evidence was properly sustained.

Morris H. Cundiff and Garner E. Shriver, both of Wichita (Dale M. Bryant, John C. Frank and Glenn J. Shanahan, all of Wichita, on the briefs), for the appellants.

Lawrence E. Curfman and Douglas E. Shay, Asst. City Attys., Wichita (Fred W. Aley, City Atty., Wichita, on the briefs), for the appellee.

WEDELL, Justice.

This was an action by H. George Perry and his wife against the city of Wichita to recover damages to personal and real property caused by water which overflowed plaintiffs' property located outside the city.

Plaintiffs appeal from orders sustaining a demurrer to their evidence, the overruling of their motion for a new trial and from the judgment rendered against them. The real issue here is whether the first mentioned order constitutes reversible error.

The material portions of appellants' evidence, in substance, disclosed:

They purchased a home in 1944 located approximately three-fourths of a mile south of the extreme eastern portion of the city. A natural watercourse known as Dry Creek runs through the eastern part of the city, slightly in a southwesterly direction. It flows east and south of appellants' property. The bed of the stream is approximately 150 feet from their east property line and some 200 feet south of their nearest building. The primary bed of the stream is approximately twenty feet wide and its banks are six to eight feet high. Approximately twenty or thirty feet north of the principal bank there is a secondary bank and then a rise of about three or four feet to appellants' property line and from there a slight slope up to appellants' buildings. The contour lines lying south of Dry Creek in that area indicate a higher bank on the south side of the stream than on the north side. In times of overflow it is greater to the north or towards appellants' property. The term 'flood plain' is a proper term to apply to that area on a small scale. The area on which appellants' house is located is relatively flat compared to other parts of the area.

The development of this eastern part of the city began about 1941 or 1942 but the particular building impetus began about 1945 and continued. Some seventy-five new plats have been approved and developed fully or partially in that part of the city and within the drainage area of Dry Creek. The drainage area embraces 2701 acres. Dry Creek is about seven and one-fourth miles in length. It has a west and east branch in the north upper area. The branches join approximately midway in its course. The stream then continues on past appellants' property which was located south of the city limits on July 31, 1950, the date of the damage, but is now located within the city.

The development of the Dry Creek drainage area has been a coordinating effort by the owners of subdivisions, the utility advisory committee, which is an advisory group to the city planning commission, the city manager, city engineer, city service director and other city officials. The city also supervised and controlled the zoning, building requirements and character of improvements constructed.

The subject of proper drainage of surface water entered prominently into the consideration and development of new city plats. Dry Creek is a natural watercourse. The southern half of Dry Creek has many curves below the junction of the two branches. Some changes were made therein, especially in the west branch, by the elimination of loops, widening the channel and cleaning out trees and debris in its bed. These changes naturally accelerated the flow of water. Some underground flumes or vessels constructed of cement were installed along parts of the west branch drainage area and in other parts, along the west branch, open box channels designed to pick up surface waters were built. All these changes were made with a definite plan of carrying water into this natural watercourse. Many miles of street pavement were built with curbing and guttering which accelerated the flow of water into Dry Creek. Some of the paved streets were used as a means of carrying surface water into Dry Creek. Some old culverts and other openings were adequate prior to the development of this part of the city but were wholly inadequate to handle the volume of water at the time of the damage to appellants' property on July 31, 1950. The improvements for handling surface water were made principally along the west branch before it joined the east branch. From the junction south to appellants' property the channel is in its natural state, with possibly one exception which was a minor change made by Sedgwick county. The direct length of the meandering part of the channel north of appellants' property is about 9000 feet. The drainage basin or area in 1950 was substantially as nature made it. No substantial amount of water is now passing into the Dry Creek area from any other drainage basin.

We are told there was rainfall of more than one inch in this area of the city on July 30 and approximately three and one half inches on July 31, 1950, in about four hours. The water first got onto a part of appellants' ground in 1944. There was no overflow in 1945 but their strawberries were ruined in 1947. The water rose a little each year after 1947 but did not get into their home until July 31, 1950. In 1951 it was one inch higher than in 1950. There were rainfalls prior to 1950 which equaled or exceeded those of 1950 but the flooding was not nearly so severe in this general area as in 1950. There was a flooding in 1951 with a smaller rainfall than in 1950. Comparable rains have increased the flooding since the mentioned development in the Dry Creek area. The amount of water reaching the area of appellants' property is now between two and one half to three times as great as that which reached it before this area of the city was developed in the manner indicated. Without the development and changes indicated appellants' property would not have been flooded with the rainfall that occurred in 1950. The city assumed no responsibility for handling the increased flow of water after it left the city.

Appellants' position is that in its natural state the surface water from the drainage area of Dry Creek would not have flooded their lands; the overall development of this drainage area by means of buildings, paved streets, the construction of curbs and gutters, the fixing of grade lines, the installation of flumes or vessels to carry off water and the changes made in the natural watercourse within the city all combined to increase the volume of water and the rapidity of its flow into Dry Creek beyond its capacity; that the city was aware of that fact and made no effort to dispose of or control the water after it left the city with the result their property, being that of a lower riparian owner, was damaged.

Appellants assert if the district court had applied the established rule that on a demurrer to evidence all testimony favorable to them must be accepted as true and all unfavorable testimony, if any, must be disregarded, the demurrer would have been overruled. Appellants' statement of the rule is correct and this court will consider the evidence accordingly. The question here does not concern the correct statement of the rule but rather whether the rule was properly applied to the conceded facts under the law applicable to cases of this character.

One of appellants' contentions is the city in its development program was not exercising governmental but proprietary or municipal functions and, therefore, is liable for its alleged wrongful acts. In support of that contention they rely primarily on Krantz v. City of Hutchinson, 165 Kan. 449, 196 P.2d 227, 5 A.L.R.2d 47, and on some cases from foreign jurisdictions. Before considering our own cases it should be frankly conceded there is considerable divergence of opinion among courts and text-writers relative to whether certain activities of cities constitute governmental functions or functions interchangeably referred to as proprietary, corporate and municipal. Some difference of opinion also obtains concerning the...