Prickett v. Belvue Drainage Dist.

• Decision Date: 04 November 1944
• Docket Number: 36141.
• Citation: 159 Kan. 136,152 P.2d 870
• Parties: PRICKETT v. BELVUE DRAINAGE DIST. et al.
• Court: Kansas Supreme Court

152 P.2d 870

159 Kan. 136

PRICKETT v. BELVUE DRAINAGE DIST. et al.

No. 36141.

Supreme Court of Kansas

November 4, 1944

Syllabus by the Court.

A drainage district, duly organized and incorporated under statutory provisions, is an arm of the state, exercising governmental functions. Gen.St.1935, 24-401 et seq.

A drainage district has broad powers to change natural channels of watercourses and construct drainage works, and its officers, in exercise of such powers, may exercise discretion and judgment free from interference or control by courts, in absence of fraud or bad faith. Gen.St.1935, 24-401 et seq.

A petition, alleging that defendant drainage district, when river was at flood stage, enlarged mouth of drainage ditch in order to divert more water from river, with direct result that plaintiff's land was eroded and other damage caused and praying damages for loss of part of land and depreciation in value of remainder, was not bad as attempting to state cause of action for negligence. Gen.St.1935, 24-401 et seq.

On appeal from judgment overruling demurrer to petition averments of fact therein must be liberally construed in pleader's interest.

The fact that land was taken as result of drainage district's widening of ditch in emergency when there was no time to follow procedure for condemnation of land did not bar owner's recovery of damages from district. Gen.St.1935 24-407, subds. 4, 13; 24-438 et seq.

The constitutional guarantees against taking of private property for public use without compensation apply where land-owners have no opportunity to present their claims under procedure prescribed in drainage district laws to recover compensation for property taken or damaged by such districts. Gen.St.1935 24-407, subds. 4, 13; 24-438 et seq.

A petition stated cause of action against drainage district for loss of part of plaintiff's land and depreciation in value of his entire farm as result of increased flow of water through drainage ditch widened by defendant for purpose of enlarging such flow.

1. When a drainage district incorporated under the statute, Drainage Act of 1905 as amended, being G.S.1935, 24-401 et seq., causes a drainage ditch to be enlarged and property taken or damaged in addition to what was within the purview of the plans and specifications originally adopted and upon the basis of which compensation was paid, the owners of property subjected to such additional loss or damage are entitled to such additional compensation therefor as would properly be allowable in a condemnation proceeding under the statute.

2. The right to compensation for such additional property loss or damage is not precluded by the fact that instead of using mechanical means alone for so enlarging the ditch the district widened and deepened the intake end of the ditch for the purpose of admitting a larger volume of water than was contemplated under the original plans and specifications and of thereby putting into action the force of erosion to accomplish the result.

3. The right to compensation for such additional property loss or damage is not precluded by the fact that the enlargement of the ditch by the means described in the preceding paragraph resulted from action taken by the district at a time of flood, under circumstances regarded as an emergency, and when there was no time for condemnation proceedings under the statute.

4. Examining the record in an action by a property owner to recover from a drainage district for property loss and damage and applying the principles of law above stated to the facts as alleged in the petition, it is Held: A cause of action was stated and a demurrer to the petition was properly overruled.

Appeal from District Court, Pottawatomie County; Lloyde Morris, Judge.

Action by William Prickett against the Belvue Drainage District and the commissioners thereof to recover damages for injury to plaintiff's land from flow of water through a drainage ditch. From a judgment overruling a demurrer to the petition, defendants appeal.

O. B. Eidson, of Topeka (T. M. Lillard, Philip H. Lewis, and James W. Porter, all of Topeka, on the brief), for appellants.

A. Harry Crane, of Topeka (Erle S. Francis and John G. Egan, both of Topeka, on the brief), for appellee.

HOCH Justice.

This was an action by a land owner to recover damages from a drainage district for injury to his property resulting from the flow of water through a drainage ditch. The trial court overruled a demurrer to the petition, and the defendant district appeals. The question presented is whether the petition stated a cause of action against the drainage district.

The essential averments of the petition may be briefly summarized. The plaintiff, William Prickett, owns and with his family resides on a farm in Pottawatomie County; the defendant, the Belvue Drainage District, is an established drainage district covering territory in that county on the north side of the Kansas River, where the plaintiff's land is located. In 1931 plaintiff conveyed by general warranty deed to the State Highway Commission a strip of land 200 feet wide east and west and extending south from the highway north of his farm to the right of way of the Union Pacific Railroad; in the same year the defendant constructed a drainage ditch starting at the Vermillion River north of plaintiff's land and running south from that point and then through the center of this 200 foot strip of land; at the time of its construction the drainage ditch was about 25 feet wide at the top, 20 feet wide at the bottom, and was constructed for the purpose of diverting and carrying some of the water from the Vermillion River and emptying it into the Kansas River south of plaintiff's land; Pottawatomie County constructed a bridge over this ditch on the east and west highway just north of plaintiff's farm and he and his employees used this bridge going from and to his residence and farm buildings in connection with his farm operations; the soil through which the ditch was dug is a sandy loam top soil and from several feet below the surface or top soil is composed of pure sand of a fine, shifting character; on October 10, 1941 the Vermillion River reached flood stage and the overflow poured into the ditch; on or about that date the defendant "widened and deepened said ditch at its North end to make it take in and carry a larger volume of water than before, and thereby caused a greater discharge of water into said ditch than was originally planned for said ditch to carry", and "by reason of the widening and deepening of the North end of said ditch and the greater volume of water which poured into it the action and power of said large volume of water against the banks cut the sandy subsoil and the top soil away along the East side of said ditch"; and on or about the 12th day of October, 1941, another rise in the water of the Vermillion River again filled the ditch "which had been widened and deepened as aforesaid, and the great volume of water at both times above stated, caused continuous cutting, by the action of such water, of the East bank of said ditch to such an extent that the water invaded plaintiff's land on the East side, and washed out and carried away about five acres of heavy rich top soil and the soil thereunder", with the result that said five acres was left without any soil on which crops could be raised, and "its surface was much lowered and made difficult of access"; as a result of this erosion the east approach of the highway bridge was washed out and has never been filled nor the bridge repaired, and traffic along the highway has thereby been "made impracticable and has been discontinued"; as a result of losing this bridge plaintiff has been compelled to travel several miles in order to reach different parts of his farm; as a result of this erosion caused by the overflowing of his land the value of his entire farm has been greatly diminished.

The plaintiff asked damages in the sum of $750 for the actual loss of the five acres of land; $1000 for the extra travel resulting from losing the use of the highway, and $3000 for depreciation in value of the whole farm.

The plaintiff further alleged that by the erosion brought about by defendant's action in enlarging the mouth of the ditch a "wrongful nuisance" had been created "which will constantly recur unless defendants be compelled to restrict the inflow of water in said ditch *** and to properly protect the banks of said ditch, and the same will work an irreparable injury to plaintiff and his farm, and will result in interminable injuries to plaintiff, and burden him with endless injury and litigation unless plaintiff is relieved in equity." He further alleged that the defendant, although often notified by him of the...