Schrag v. The Blaze Fork Drainage District

• Decision Date: 11 July 1925
• Docket Number: 25,992
• Citation: 237 P. 1047,119 Kan. 169
• Parties: JOHN J. SCHRAG, Appellee, v. THE BLAZE FORK DRAINAGE DISTRICT, Appellant
• Court: Kansas Supreme Court

237 P. 1047

119 Kan. 169

JOHN J. SCHRAG, Appellee, v. THE BLAZE FORK DRAINAGE DISTRICT, Appellant

No. 25,992

Supreme Court of Kansas

July 11, 1925

Decided July, 1925.

Appeal from McPherson district court; WILLIAM G. FAIRCHILD, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. DRAINS--Drainage Districts--Jurisdiction Over Surface Waters. A drainage district, organized under chapter 168 of the Laws of 1911, through its board of supervisors, has exclusive jurisdiction over surface-water drainage within its boundaries.

2. SAME--Powers and Authority of Districts. The supervisors of such a drainage district are authorized to change the channels of ditches, drains or watercourses and to relocate and establish new ones. The judgment and discretion vested in them may be exercised without interference or control by the courts unless fraud or bad faith enter into their action.

3. SAME--Construction of Ditch--Bad Faith. The fact that a drainage ditch constructed by the supervisors of a drainage district did not have sufficient capacity to take care of a flood caused by excessive rainfall did not imply bad faith where the supervisors, in constructing the ditch in question, acted under the advice of competent engineers.

4. SAME--Jurisdiction Over Prior Individual Drains. An individual who by artificial means conveys waters from submerged lands in one drainage area, watershed or district to another has no vested right, by priority, to continue the maintenance of his ditches and outlets within the district to which the water is conveyed against the will and contrary to the judgment of the supervisors thereof, although such drainage district was subsequently organized.

5. SAME--Use of Joint Drains--Compensation. An individual or drainage district conveying water from one drainage area or watershed into the natural drainage outlet of another district is bound to pay the reasonable compensation incident to the disposition of such water.

Frank O. Johnson, of McPherson, and Thomas A. Pollock, of Kansas City, for the appellant.

Frank L. Martin and James N. Farley, both of Hutchinson, for appellee.

Hopkins J. Harvey, J., dissenting.

OPINION

HOPKINS, J.:

The action was one for mandatory injunction to require the removal of a dam placed in plaintiff's drainage ditch, and to enjoin the collection of special assessments levied on plaintiff's land to maintain the defendant's drainage system. The plaintiff prevailed, and defendant appeals.

About two and one-half miles west of McPherson is located a fresh-water marsh or swamp designated on the United States geological maps as a sink or depression without natural drainage outlet. It covers about 2,000 acres and has been generally known as "The Basin." In its natural condition, before the occurrences narrated herein, it received and held, until lost by evaporation or percolation, the surface waters from the surrounding drainage area of approximately 20,000 acres. The plaintiff owns nine quarter sections of land situated in this basin.

The defendant, the Blaze Fork drainage district, is south of and adjacent to the basin. It comprises the headwaters of the Blaze Fork creek. The Blaze Fork creek has a natural drainage area of about 7,000 acres. The basin is no part of the natural watershed of the Blaze Fork creek.

Plaintiff, about 1911, commenced the construction of a dike around his nine quarter sections of land. On the outside of the dike he constructed a ditch. In this manner he excludes from the basin the water from the 20,000 acres of its drainage area. This water from the 20,000 acres he collects in his ditches and conveys to a point near the southwest corner of his nine diked quarter sections, thence through an outlet ditch south and into the defendant drainage district at the north line of the northwest quarter of section 34-19-4 west of the sixth principal meridian; thence southeasterly across the northwest quarter of section 34; thence easterly and southeasterly to the east line of the southeast quarter of section 34 into the Blaze Fork creek. The Blaze Fork creek was not of sufficient capacity to carry off the additional waters from the basin, with the result that farmers living along the Blaze Fork creek had their hay and mow lands and some alfalfa lands permanently injured.

The defendant drainage district was organized December 7, 1916, under chapter 168 of the Laws of 1911. One of the reasons for its organization was to protect the lands in the district from overflow by water from the basin cast upon them by means of plaintiff's ditches. Eighteen months after its organization, by decree of the district court, it brought into the district the northwest quarter of section 34-19-4 west of the sixth principal meridian, belonging to plaintiff, which extends to the southern margin or rim of the basin. The plaintiff's outlet ditch, leading in a southeasterly direction through this quarter section and then east, had two mouths: one at its intersection with a road ditch on the east line of section 34, which empties into Blaze Fork creek; the other in a depression or shallow draw on the southeast quarter of section 34. The drainage 'district constructed a ditch directly south along the center line of section 34 and placed a dam in the plaintiff's ditch, which runs east from that point.

The court found, among other things:

"That on June 10, 1918, the northwest quarter of section 34, township 19, range 4 west of the sixth principal meridian, then and ever since owned by the plaintiff along with other lands, were included in the defendant district by a decree of the district court of McPherson county.

"Third. . . . That in 1918 the defendant district employed H. A. Rowland and V. R. Parkhurst, competent drainage engineers, to make a topographical survey of the district and submit the same to the board of supervisors, with reports and profiles of said survey and a full and complete plan of drainage, reclaiming and protecting the lands in said district from the overflow of or damage by water or floods. Said engineers and the board of supervisors of the defendant also consulted with H. B. Walker, then state drainage engineer of the state of Kansas, with reference to the drainage problems and plans for a drainage system for the defendant district. The said Rowland and Parkhurst made a topographical survey, maps, plans, estimates of cost, and reports for said improvements, and submitted the same to the defendant's board of supervisors for their consideration. Said engineers inspected all the lands and property in the defendant district, classified the same, estimated, apportioned and assessed against the various tracts of land and property in said district the benefits and cost of its system of drainage ditches, and reported as to all of said matters to the board of supervisors of the defendant district.

"Fourth. . . . That the defendant's board of supervisors, upon the filing of the reports of its said engineers, together with their estimates, maps, plans, profiles and proceedings, gave due and proper notice, as required by chapter 168 of the Session Laws of 1911, of the said plans and assessments and benefits for a hearing of the same to be held on July 16, 1918. At said date the said board of supervisors met with the said engineers, and said board heard objections to said plans and assessments and benefits, and after having heard all the objections made, the said board approved the report of the said engineers of the said plans and specifications and the assessments and benefits, with slight modifications of assessments of benefits, and duly adopted the said plans and specifications and assessments and benefits, as so modified by them. The ditches and drains were duly constructed according to the said plans and specifications and were completed in the year 1919.

"Fifth. . . . That the drainage area of the defendant's district comprises the headwaters of the Blaze Fork creek, and consists of some 7,000 or 8,000 acres.

"Sixth. . . . That the drainage area of the basin consists of an area of about 20,000 or 22,000 acres.

"Fifteenth. . . . That in June, 1923, there was an excessive rainfall, a rain of four or five inches falling from eleven in the evening by daylight the following morning. This rainfall caused a flood in the drainage area of about ten miles west of the point where the defendant's drain was constructed to take the water from the said stream. At that point the fall is very heavy and the area drained consists of about 8,000 acres.

"Twentieth. . . . That the plaintiff constructed his ditch pursuant to chapter 175, Session Laws of 1911, . . . and that he continued to increase its capacity. . . . That there is an area of more than 20,000 acres of land that drains from the north, northwest and northeast into the basin. That the plaintiff's dikes around the land which he owns has a tendency to increase the head of water in time of flood and to cause a heavier flow of water in his ditch.

"Twenty-fifth. . . . That the basin belongs to and is a part of the natural watershed of the Blaze Fork and that the plaintiff, in constructing his ditch, followed the general course of natural drainage, and that during excessive rains the water in the basin overflowed the rim and ran in the general course followed by plaintiff's ditch and emptied into the Blaze Fork on the east side of section 34.

"Twenty-sixth. . . . That only that part of plaintiff's land in section 34 is within the defendant's drainage ditch district and subject to taxation for its construction and maintenance; and that the balance of plaintiff's land is outside of defendant's drainage ditch district and not subject to taxation."

The court concluded that the...