Puhr v. Kansas City
| Decision Date | 07 December 1935 |
| Docket Number | 32419. |
| Citation | 51 P.2d 911,142 Kan. 704 |
| Parties | PUHR et al. v. KANSAS CITY et al. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Board of public utilities of Kansas City held not required to obtain permit from governing body of city to erect water tower and tank in residence district, as respects city's liability for damages to owner of property adjoining tower (Rev.St.Supp. 1933, c. 13, 13-- 1220 to 13--1245).
Water tower and tank erected by board of public utilities on land belonging to city, adjacent to land in zoned residence district, held not unlawful structure or nuisance per se because of noncompliance with ordinance, as respects city's liability for damages to adjoining owner.
Surface water may not be accumulated by one owner and cast in volume or with force upon land of another, but, generally consequence of retention, diversion, repulsion, or altered transmission is not actionable injury, unless pursuant to statute relating to agricultural land and highways outside boundaries of cities (Rev.St. 1923, 24--105).
City held not liable for damages for injury to land adjoining land on which board of public utilities erected water tower and tank which damages were sought for diversion of surface water, mournful noise produced by structure on windy evenings, consequence of collapse of structure or its being blown down by wind and for unsightly appearance (Rev.St.Supp 1933, c. 13, 13-- 1220 to 13--1245).
1. A zoning ordinance of the city of Kansas City, creating residence districts, and a subsequent act of the Legislature creating a board of public utilities to manage, operate improve, and extend the city's water plant (R.S. 1933 Supp., art. 12, c. 13), construed, and held, the board of public utilities was not required to obtain a permit from the governing body of the city to erect a water tower and tank in a residence district.
2. A water tower and tank erected by the board of public utilities on land belonging to the city, adjoining and adjacent to land in a zoned residence district, occupied by the owners, did not constitute an unlawful structure, and did not constitute a nuisance per se, because of noncompliance with a zoning ordinance.
3. Petitions considered in actions for damages for injury to land adjoining and adjacent to the land on which the tower and tank were erected, and held not to state causes of action for diversion of surface water; for mournful noise produced by the structure on windy evenings; for consequence of collapse of the structure or its being blown down by wind; for unsightly appearance.
Appeal from District Court, Wyandotte County; Charles A. Miller, Judge.
Action by V. W. Puhr and others against Kansas City and others. From a judgment overruling a demurrer to the petition, defendants appeal.
Reversed and remanded, with directions.
A. H. Skinner, William Drennan, John O'Brien, Otto Ziegelmeyer, and Charles W. Lowder, all of Kansas City, for appellants.
H. J. Smith and Joseph Cohen, both of Kansas City, for appellees.
The action was one for damages for injury to real estate, consequent on erection of a municipal water tower and tank on adjoining land. A demurrer to the petition was overruled, and defendants appeal.
The city of Kansas City is a city of the first class, having the commission form of government. In July, 1924, the governing body enacted a zoning ordinance creating residence districts. The ordinance provided that no building or premises should be used, and no building should be erected in a residence district, except for one or more enumerated uses. In the enumeration, appeared the following:
Section 8 contained the following:
Plaintiffs own a lot in a residence district, on which stands a dwelling house. The petition alleged plaintiffs purchased the lot and erected the improvement because the lot was in a zoned residence district, and they could be assured of a quiet district in which to reside.
In 1929 the Legislature passed an act abolishing the office of water and light commissioner in the city of Kansas City. Management and control of its water and light plants were committed to a board of public utilities, charged with duty to supply water and electric energy for domestic and industrial purposes and for public use in the city. The board was given plenary authority to manage, operate, maintain, and control such plants, including authority to improve, extend, and enlarge. R.S. 1933 Supp., art. 12, ch. 13.
In the year 1934, the board of public utilities erected a water tower and tank, 125 feet high, on a tract of ground 90 by 135 feet in area, owned by the city, and adjoining plaintiffs' lot. The tank is supported by six steel standards, held together by rods, braces, and grillwork. There are two perpendicular pipes in the structure. Through one of them water is pumped into the tank, and through the other water is released from the tank. The structure is surrounded by a high woven wire fence. No application was made for a permit to erect the structure, no hearing was had, and no permit to erect the structure was issued. Plaintiffs contend they have a cause of action for damages for noncompliance by the board of public utilities with the zoning ordinance.
While maintenance and operation of a water plant fall on the proprietary, rather than on the governmental, side of municipal power, the business has a district governmental aspect. Water is provided for protection against fire, for sanitary purposes, and for other purposes falling within police power.
It is difficult to say that, under the régime existing previous to enactment of the statute of 1929, the governing body of the city was required to make application to itself for a permit to erect a structure regarded as necessary to improve the water service. The term "public utility," as used in the zoning ordinance, doubtless applied to a public utility, such as a privately owned water plant, and not to the city's own plant. In any event, the law of 1929 enacted some five years after the zoning ordinance became effective, authorized the board of public utilities to operate the water and light departments of the city in its own way without consulting anybody. Besides that, the law required that on request of the board of public utilities, it shall be the duty of the governing body to enact ordinances deemed necessary by the board for protection of the water...
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...be carried out consistently with the municipal zoning regulations. See McKinney v. High Point (N.C.1953) , 74 S.E.2d 440; Puhr v. Kansas City (Kan.1935) , 51 P.2d 911; Water Works Board v. Stephens (Ala.1955) , 78 So.2d 267; Treasure Island v. Decker (Fla. [App.]1965), 174 So.2d 756; Baltis......
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