State ex rel. Tibbels v. Iden
| Decision Date | 10 May 1920 |
| Docket Number | 13521.n |
| Citation | 221 S.W. 781 |
| Parties | STATE ex rel. TIBBELS, Pros. Atty. v. IDEN |
| Court | Kansas Court of Appeals |
Not to be officially published.
Appeal from the Circuit Court, Holt County; Alonzo D. Burnes, Judge. Action by the State, on the relation of A. M. Tibbels Prosecuting Attorney, against John F. Iden. From a judgment sustaining a demurrer to the petition, plaintiff appeals.
Affirmed.
Frank Petree, of Altus, Okl., and A. M. Tibbels, of Mound City, for appellant.
William Bissett, of Mound City, and Strop & Mayer, of St. Joseph, for respondent.
Plaintiff appeals herein from a judgment sustaining a demurrer to the petition. It is a suit brought in the name of the state, at the relation of the prosecuting attorney of Holt county, to enjoin the defendant from erecting and maintaining a certain dam, and to abate, as a public nuisance, that portion thereof already erected.
The petition discloses that Tarkio Slough, sometimes called Big Lake, is a no navigable water course, which at the northern portion is a "broad expanse of water," but at the southern portion is narrow, with well-defined banks, bed, and channel, through which the water flows and empties into Big Tarkio creek, which narrow channel is sometimes called the "outlet" to Tarkio Slough; that defendant is erecting and threatens to erect and maintain a dam across said outlet, which will prevent the waters from emptying into Big Tarkio creek and the Missouri river; that defendant never procured permission or authority from the circuit court of said county to erect said dam, as provided for In chapter 39, R. S. 1909, and does not now have such authority for the erection or maintenance of the same. The petition then alleges that "If the defendant is permitted to erect and maintain said dam and obstructions across and In the channel of said water course, as aforesaid, that the waters of said slough, above said dam, will be caused to rise to a great height and to spread out and overflow the lands adjacent thereto, and thereby render said lands wet, miry, and unfit for cultivation, and will cause irreparable injury to the owners of said lands," and that said dam, If erected and maintained, "will according to the provisions of Bald chapter 39 constitute and be a public nuisance under the law of this state."
Has the petition stated facts showing that the dam being erected and sought to be abated is a public nuisance? Appellant, argues that, since the petition alleges a dam built without proceeding as directed In chapter 39, R. S. 1909, entitled "Dams for Mills and Electric Power," the dam In question is a public nuisance, made so by statute, In view of section 5479 of said chapter, which says:
"All dams * * * not made according to law shall be deemed to be public nuisances, and may be dealt with as such."
But that enactment, appearing In the chapter on "Dams for Mills and...
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