Rolens v. The City of Hutchinson

• Decision Date: 10 December 1910
• Docket Number: 17,344
• Parties: JAMES M. ROLENS et al., Appellants, v. THE CITY OF HUTCHINSON, Appellee
• Court: Kansas Supreme Court

112 P. 129

83 Kan. 618

JAMES M. ROLENS et al., Appellants, v. THE CITY OF HUTCHINSON, Appellee

No. 17,344

Supreme Court of Kansas

December 10, 1910

Decided July, 1910.

Appeal from Reno district court.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. EASEMENTS--Additional Servitude--Consent or Condemnation--Cities--Drainage Ditch. A city was granted an easement to lay three or more twenty-four-inch pipes in a certain strip of the grantor's land twenty-five feet wide, which extended from a creek to a canal for the passage of water, and the city, subsequently finding the pipes to be inadequate for the purpose, undertook to dig and substitute an open ditch twenty-five feet wide instead of the drainage pipes, without the consent of the grantor and without condemning a right of way for the ditch. Held that the easement granted measured the rights of the parties, and that it did not give the city the right to an open ditch along the strip where the pipes were laid; and, further, that the additional servitude can not be imposed against the will of the grantor without a condemnation proceeding.

2. EASEMENTS--Additional Servitude Beneficial to Grantor of Easement. The fact that the open ditch might result in benefit to the grantor's land does not warrant the city in making a substantial change in the easement or in enlarging the use granted without the consent of the grantor.

3. EASEMENTS--Additional Servitude--Injunction. The attempt to make and use the open waterway in place of the drainage pipes, without obtaining the consent of the grantor or the legal right to do so, may be restrained by injunction.

Carr W Taylor, and George A. Neeley, for the appellants.

A. W. Tyler, city attorney, for the appellee; F. L. Martin, of counsel.

OPINION

JOHNSTON, C. J.:

This is an appeal from a judgment refusing to grant a temporary injunction against the city of Hutchinson, in which suit the court was asked to restrain the city from the construction of an open drainage ditch across the appellants' lands. The appellants are the grantees of A. J. Malick, who owned a small tract of land in the city of Hutchinson, across which Cow creek, a tortuous stream carrying considerable water, flows. On the west side of appellants' lands a drainage canal had been built by the city for the purpose of carrying off the flood waters of Cow creek. In 1908 the city undertook to straighten the course of Cow creek running through appellants' lands, and thus prevent an overflow upon the grounds, by damming up Cow creek at a point near its entrance upon appellants' lands and causing the water to flow through the drainage canal west of appellants' lands for some distance. By an agreement entered into by the city of Hutchinson and Malick he granted to the city the right to reconduct the waters from the drainage canal into Cow creek at a point several hundred feet below the dam, by laying drainage pipes in and across the lands of appellants to the bed of Cow creek. Under this agreement the city laid three twenty-four-inch pipes in and through the Malick land for a distance of 267 feet. The extent of the easement and the right of the city under it is the main controversy in this action.

The purpose of the city in damming the creek and turning the water into the canal, and then back into and through drainage pipes, was to eliminate several curves, or bends, in the creek on appellants' lands, thus straightening the stream and preventing overflows. The material part of the instrument creating the easement is the provision for "a right of way or easement for the purpose of laying three or more lines of twenty-four-inch pipe in and across the land of grantors from the drainage canal to Cow creek, said right of way and easement to be twenty-five feet wide, and located as follows," describing the location of the line, which was 267 feet long. The instrument conveying the easement is formal and complete. The city claimed the right, and had begun, to dig up the three drainage pipes laid across the appellants' lands by virtue of the easement, because of their inadequacy for drainage purposes, and to substitute and maintain an open ditch twenty-five feet wide along the strip of land in which the city had been given the right to lay the pipes.

The city admits that in the digging of such open ditch the dirt will be piled temporarily on the lands of appellants, but insists that it has the right under the easement granted to maintain in the place of the pipes an open ditch, and thus prevent the appellants from the use of the surface of their lands over the drainage pipes. The injunction was refused and appellants are here contending that they were entitled to an order enjoining the appellee from proceeding with the construction of an open ditch without their consent or without condemning the interest proposed to be taken in excess of that granted and the making of compensation therefor in the manner prescribed by law. The easement in controversy was created by an express grant, and it must be held to be the measure of the rights of the parties. The city was granted the right to lay three or more twenty-four-inch pipes in a certain twenty-five-foot strip, extending from the canal to the creek, a distance of 267 feet. Under this easement the city is entitled to lay as many twenty-four-inch pipes as can be placed in the strip, but the easement to lay pipes in the ground differs greatly from one to construct and maintain an open canal across the land. An open waterway dividing an owner's land and depriving him of all benefit of the use of the surface under which the pipes were laid would constitute an increase of the burden imposed and an enlargement of the use actually granted. In Darlington v. Painter, 7 Pa. 473, it was decided that "the grantee of a watercourse can not use it for any purpose that would increase the flow, enlarge the ditch, or affect the water in any way different from that use for which the watercourse was granted." (Syllabus.) The city can claim no more under the grant than the right to lay and maintain pipes, and incidental to this it probably has the right to enter upon the land for the purpose of making necessary repairs, while the owner who granted the easement and in whom the title to the land remains is entitled to make any and every use of the land and to the profits derivable from such use, providing they are not inconsistent with the enjoyment of the easement. In ...