Rait v. Furrow

• Decision Date: 09 June 1906
• Docket Number: 14,626
• Citation: 85 P. 934,74 Kan. 101
• Parties: A. C. RAIT v. J. G. FURROW
• Court: Kansas Supreme Court

85 P. 934

74 Kan. 101

A. C. RAIT v. J. G. FURROW

No. 14,626

Supreme Court of Kansas

June 9, 1906

Decided January, 1906.

Error from Geary district court; OSCAR L. MOORE, judge.

STATEMENT.

THIS was a suit by J. G. Furrow to enjoin A. C. Rait from maintaining an embankment and thereby obstructing what is called a natural watercourse flowing through his land and upon that of Rait. The trial court made findings of fact from which it appears that Furrow owns a farm in Geary county, and adjoining it on the east is a farm owned by Rait. The south part of the two farms is hilly land, and the remainder is bottom-land which is nearly level. Two ravines, beginning in the hills, come down on Furrow's land and ate designated "West creek" and "East creek." West creek is conceded to be a watercourse. East creek drains about 800 acres of land in the hills, and has a well-defined course with banks from one to three feet deep, until it reaches the level land.

In an early period, when there were heavy rains, the water ran down East creek to Furrow's land, and from there followed a depression until it reached and spread out over Rait's land. There was then no well-defined channel over the bottom-land and along the course which the water ran, but it passed over a depression in Furrow's land for about 1300 feet before it reached Rait's land. Along this depression there were numerous erratic, wet-weather springs, which appeared and disappeared from time to time; but, except during wet weather, these springs did not furnish sufficient water to make a current or channel extending to and upon defendant's land. The water which came down this depression spread out over the depression on Rait's land and, without forming a definite channel or taking a common course, worked a distance of 200 or 300 yards to the southeast, where it usually formed a pond of water in a deeper depression on Rait's land, and from this point worked its way eastward and northeastward toward the river without forming any definite or visible course until it left defendant's land.

About twenty-three years ago the parties cut an artificial ditch from East creek, at the foot of the hills, over to West creek, in an effort to convey the water from the former over to the channel of the latter. This was sufficient for that purpose, except during heavy rains, until the floods of 1903. Prior to that year, and during the heavy rains, the water would overflow the banks of this ditch and run down over the depression on Furrow's land and onto that of Rait. It did not, however, break through the turf or make a definite channel. There were some holes and irregular and disconnected ditches near the wet-weather springs, but prior to 1903 these springs only produced running water during wet seasons, and it did not appear that the water from the springs reached Rait's land through any definite channel. When the freshets of 1903 came the water broke over the banks of the artificial ditch connecting the two creeks, near an old road. When that happened it cut a ditch or channel down through the depression by the springs on Furrow's land and to Rait's farm. In one of its findings the court states particularly the character of the channel and stream in question:

"From about ten or fifteen feet from where the water left the old road to the east line of plaintiff's land there is a visible, well-defined channel, cut through the turf, with banks, through which water has been continually running since the said floods of 1903. This water comes from the plaintiff's land and not from the hills. There are no visible springs from which the water comes. It either originates from springs invisible, in the bottom of the ditch, or it oozes or seeps out of the soil. From the evidence I am unable to tell which. It is a continuous stream, from about ten feet from the said old road to the east side of plaintiff's land, and it increases in volume as it approaches defendant's line. At defendant's line the stream is sufficient to carry over onto the defendant's land as much as a half a barrel of water every minute."

The water runs about 1200 feet in the channel through Furrow's land and over to Rait's land, with a descent of six and one-half feet. Where the stream reaches Rait's land he built an embankment which throws the water back upon Furrow's land, to the latter's damage. The water finally finds its way around the embankment and into a large hole on Rait's land on the opposite side from where the stream strikes the embankment, and extending eastward fifteen or twenty feet. From the east end of this hole there is no regular channel worn by the water, but there is a depression extending eastward. Rait has constructed an artificial ditch from the hole, which carries the water beyond his land. Although the water has continued to run in the stream since the spring of 1903, it was shown that for a considerable part of the time the rainfall has been below normal for the same months of many years. In conclusion the court found that the channel or stream across which Rait constructed the embankment is a natural watercourse, and that the embankment obstructing the watercourse is a nuisance which should be abated, and this was the judgment rendered.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. WATERCOURSES--Definition of a Natural Watercourse. Where water runs in a well-defined channel, with bed and banks made by the force of the water, and has a permanent source of supply, it is to be regarded as a natural watercourse, although the stream may be small, its course short, and it may have existed for only a short time.

2. WATERCOURSES--Source of Supply. The source of supply may be springs, surface-water, or a pond formed by surface-water; but, whatever the source, if it has the element of permanence it becomes a natural watercourse where the water comes to, or collects on, the surface and flows in a well-defined channel and bed, with such banks as will ordinarily confine the water and cause it to run in a definite direction.

3. WATERCOURSES--Permanence--Age. While the element of permanence is necessary, great age is not an essential attribute of a watercourse.

4. WATERCOURSES--Character of Outlet Immaterial. A stream may be a natural watercourse although its outlet be over the unchanneled surface of lowland, and not into another watercourse.

Humphrey & Humphrey, for plaintiff in error.

Thomas Dever, and Roark & Roark, for defendant in error.

JOHNSTON C. J. All the Justices concurring.

OPINION

JOHNSTON, C. J.

Is the stream in question a natural watercourse? If it is, the embankment which obstructs its flow is a nuisance which was properly enjoined; but, on the other hand, if it is a vagrant outburst, which temporarily overflows the surface of the land, it is to be treated as surface-water--a common enemy against which Rait was entitled to fence. A watercourse consists of a channel, with banks, and bed, and running water. There must be a source of supply, a defined channel, and permanence of flow. In Gibbs v. Williams, 25 Kan. 214, 37 Am. Rep. 241, a general definition was given:

"Again, for a watercourse there must be a channel, a bed to the stream, and not merely lowland or a depression in the prairie over which water flows. It matters not what the width or depth may be, a watercourse implies a distinct channel, a way cut and kept open by running water, a passage whose appearance, different from that of the adjacent land, discloses to every eye on a mere casual glance the bed of a constant or frequent stream." (Page 220. See, also, Palmer v. Waddell, 22 Kan. 352; U. P. Rly. Co. v. Dyche, 31 Kan. 120, 1 P. 243; K. C. & E. Rld. Co. v. Riley, 33 Kan. 374, 6 P. 581; C. K. & W. Rld. Co. v. Morrow, 42 Kan. 339, 22 P. 413; C. K. & N. Rly. Co. v. Steck, 51 Kan. 737, 33 P. 601; Railway Co. v. Scott, 71 Kan. 874, 81 P. 1131.)

East creek, the stream in question, has a well-defined channel, with bed and banks, in which there has been a steady flow of water since the early part of 1903. Prior to that time the upper part of that stream, which drained the hill country, had a well-defined course, with banks, until it reached the bottom-land, from which place it passed down a depression in Furrow's land and extending to the land of Rait. In this depression the water followed no distinct course, and there was no well-defined channel. From the facts found it cannot be said that the flow of water through Furrow's land prior to 1903 constituted a stream with the attributes of a watercourse. Water did issue from some springs, but only in wet weather, and the water which passed down the depression near the springs left no impress of permanent running water. Since the flood of 1903, however, there has been a regular channel, with banks and bed, and the flow of water has been so steady and persistent as to show that the stream has a well-defined and substantial existence.

It is argued that the supply of water is not so permanent in character as to make it a watercourse. The court did find that ordinarily the water in the stream does not come from the hills; that it either comes from invisible springs in the bottom of the channel or from seepage, but from which of the two sources the evidence did not disclose. It is argued that seepage is no more than surface-water, and that, as the court could not say that springs existed, its finding was the equivalent of a holding that there was no permanent supply.

To constitute a watercourse it is necessary that there be a permanent source of supply. (Barkley v. Wilcox, 86 N.Y. 140, 40 Am. Rep. 519; Sally M. Jeffers et al Appellants, v. Robert N. Jeffers,...