Sanders v. State Highway Commission

• Decision Date: 07 April 1973
• Docket Number: No. 46678,46678
• Citation: 211 Kan. 776,508 P.2d 981
• Parties: Owen SANDERS, Jr. and Karan K. Sanders, Appellants, v. The STATE HIGHWAY COMMISSION of the State of Kansas, Appellee, and City of Kansas City, Kansas, a municipal corporation, and J. A. Tobin Construction Company, Defendants. J. L. BLANKENSHIP and Honey Blankenship, Appellants, v. The STATE HIGHWAY COMMISSION of the State of Kansas, Appellee, and City of Kansas City, Kansas, a municipal corporation, and J. A. Tobin Construction Company, Defendants.
• Court: Kansas Supreme Court

Page 981

508 P.2d 981

211 Kan. 776

Owen SANDERS, Jr. and Karan K. Sanders, Appellants, v. The STATE HIGHWAY COMMISSION of the State of Kansas, Appellee, and City of Kansas City, Kansas, a municipal corporation, and J.

A. Tobin Construction Company, Defendants.

J. L. BLANKENSHIP and Honey Blankenship, Appellants, v. The STATE HIGHWAY COMMISSION of the State of Kansas, Appellee, and City of Kansas City, Kansas, a municipal corporation, and J.

A. Tobin Construction Company, Defendants.

No. 46678.

Supreme Court of Kansas.

April 7, 1973.

Syllabus by the Court

1. Between adjacent landowners the common law right to lateral support is that each has an absolute right to have his land laterally supported by the soil of his neighbor, and if either in excavating on his own premises so disturbs the lateral support of his neighbor's land as to cause it, in its natural state, by the pressure of its own weight, to fall away or slide from its position, the one so excavating is liable.

2. The right to the lateral support of natural soil is absolute, unless changed by contract or statute, and the only proof necessary is that the excavating was a direct or proximate cause of the injury to the adjoining land. Proof of negligence or intentional taking of soil is not necessary to a recovery.

3. Although land may not be in its natural state a right of lateral support may still be recognized and enforced if the subsidence would have occurred, regardless of the presence or absence of the alterations or additions.

4. The common law right to lateral support of natural soil is a valuable right which accompanies the ownership and enjoyment of the land itself. It may not be taken while constructing highway improvements without acquisition and payment, the same as any other right or interest in real property.

5. The constitutional provision guaranteeing to every person a remedy by due course of law for injury done him in person or property means that for such wrongs that are recognized by the law of the land the court shall be open and afford a remedy.

6. The policy of courts is to uphold legislative intent rather than to defeat it, and if there is any reasonable way to construe legislation as constitutionally valid it will be so construed.

7. The provisions of K.S.A.1972 Supp. 46-901 et seq. do not provide the state or its agencies with governmental immunity from suits for the appropriation of property and interests therein arising from an appropriation of property in the construction and maintenance of the highways of this state.

8. In an action brought by property owners against the state highway commission for removing the lateral support of the soil and causing their back yards to crumble and slide down a steep incline on the right-of-way of a state highway, the record on appeal is examined and it is held, the plaintiffs alleged valid claims based on the theory of inverse condemnation for the appropriation of their rights to the lateral support of the natural soil of their properties.

Frederick K. Cross, Kansas City, argued the cause and was on the brief for appellants.

Elmer Hoge, Overland Park, argued the cause and was on the brief for appellee.

FROMME, Justice:

This consolidated appeal is from summary judgments entered in favor of the State Highway Commission of the State of Kansas (state highway commission) in actions brought by homeowners (plaintiffs) whose properties adjoin the right-of-way of Interstate Highway I-635 in Kansas City, Kansas.

On the morning of June 28, 1969, these homeowners looked out of the windows of their respective homes and discovered to their surprise that large portions of their back yards had disappeared. Excavation work had been progressing on the adjacent right-of-way of Highway I-635. Plaintiffs' properties are on higher ground and there is a steep incline from the east line of the right-of-way to the roadbed of the highway. Where plaintiffs' back yards had been the soil had crumbled and slid away onto the right-of-way leaving a large hole or crevice 45 feet long, 35 feet wide and 20 to 25 feet deep. The edge of the hole was within two or three feet of the rear sidewalks which lie parallel and along the foundations of plaintiffs' houses. The houses remained intact but sewer and water lines in the back yards were twisted and broken.

Plaintiffs' amended petitions were prepared in two counts, the first count was on the theory of damages arising from tort and nuisance and the second count was on the theory of inverse condemnation by reason of removal of lateral support. After issues were joined and interrogatories were answered the trial court sustained motions for summary judgment in favor of the state highway commission on all counts. The court determined that no causes of action were stated in Count I of the petitions because the state highway commission was protected from suits in tort and nuisance by governmental immunity. The court further determined no causes of action were stated in Count II of the petitions because it was not alleged the state highway commission appropriated plaintiffs' properties by taking possession or control over them and any damage accruing was consequential under the rule stated in Sester v. Belvue Drainage District, 162 Kan. 1, 173 P.2d 619.

The landowner-plaintiffs have duly perfected this appeal. They seek to sustain Count I of their petitions by contending the tort and nuisance created was of a continuing nature which extended between August 30, 1969, the date set for abolition of governmental immunity in Carroll v. Kittle, 203 Kan. 841, 457 P.2d 21, and March 26, 1970, which was the effective date of the statute which reaffirmed the state's governmental immunity (K.S.A.1972 Supp. 46-901 et seq.). We do not agree with plaintiffs on this contention.

In the first place our holding in Carroll was based on differences recognized in the liability of the state and its agencies while engaged in 'proprietary functions' as distinguished from 'governmental functions'. In Carroll the negligence charged was against employees of the Kansas University Medical Center. We held the medical center was engaged in a 'proprietary function' and it was on this we based our decision as to liability. Sovereign immunity from tort while engaged in 'governmental functions' was not considered by this court in Carroll. The following cases since the Carroll case indicate that sovereign immunity from tort and nuisance lives on in this state with respect to governmental functions: Smith v. Board of Education, 204 Kan. 580, 464 P.2d 571; Woods v. Kansas Turnpike Authority, 205 Kan. 770, 472 P.2d 219; Daniels v. Kansas Highway Patrol, 206 Kan. 710, 713, 482 P.2d 46; and Allen v. City of Ogden, 210 Kan. 136, 499 P.2d 527.

The state highway commission is acting in a governmental capacity when it is engaged in the establishment, construction and maintenance of the state highway system. (See Article 11, Section 9 of the Constitution of the State of Kansas and K.S.A. 68-406 et seq.) Any short-lived removal of sovereign immunity from tort while engaged in proprietary functions as declared in Carroll is not helpful to plaintiffs' claims in Count I of their petitions.

In the second place plaintiffs' actions, when based on tort and negligence, accrued in June, 1969, when the damage occurred. (See Railroad Co. v. Schwake, 70 Kan. 141, 78 P. 431, 68 L.R.A. 673.) In Carroll v. Kittle, supra, this court expressly stated:

'Except for the instant case, the effective date of the abolition of the rule of governmental immunity as applied to proprietary enterprises shall be August 30, 1969. Except for the instant case the new rule shall not apply to torts occurring prior to August 30, 1969. . . .' (203 Kan. p. 851, 457 P.2d p. 29.)

The plaintiffs' claims for tort and negligence accrued two months prior to the effective date of the short-lived rule in Carroll and are governed by the law of prior cases.

In the prior case of American Mut. Liability Ins. Co. v. State Highway Comm., 146 Kan. 239, 69 P.2d 1091, this court said:

'It is a fundamental principle, well settled in the law of this state and generally elsewhere, that the state is regarded as a sovereign governmental body and as such cannot be sued in its own courts by individuals or private corporations, except to the extent it has given its consent thereto. In this state such consent must be given by an act of the Legislature. It is also well settled that since the right of action by an individual or private corporation against the state may be granted or withheld at the pleasure of the state, acting through its Legislature, such permission may be granted with respect to certain causes of action only, and with respect to certain claimants only, and also may provide conditions precedent to the bringing of such an action and the limitation of time in which they must be brought. . . .' (p. 243, 69 P.2d p. 1094)

In Gresty v. Darby, 146 Kan. 63, 68 P.2d 649, this court said:

'. . . An action against the state highway commission is an action against the state. The state can be sued only by its consent. It has given its consent to be sued in an action against the state highway commission upon some causes of action, but not for all causes of action. . . .' (p. 66, 68 P.2d p. 651)

In Phillips v. State Highway Comm., 148 Kan. 702, 84 P.2d 927, this court said:

'. . . (W)e direct our attention at once to the rule of law which governs cases where damages are sought against a governmental agency. That rule is that neither the state nor any of its subdivisions, nor any of its official boards, is liable in damages except where the legislature has expressly so declared. (Citations omitted)' (p. 704, 84 P.2d p. 929)

Consent has been given and immunity has been waived in certain types of actions such as suits on express contracts (Kiewit & Sons' Co. v. State Highway Comm., 184 Kan. 737, 339 P.2d 267); suits in inverse condemnation (Dugger v. State...