State v. The Lake Koen Navigation

• Decision Date: 06 July 1901
• Docket Number: 12,129
• Citation: 65 P. 681,63 Kan. 394
• Parties: THE STATE OF KANSAS, ex rel., v. THE LAKE KOEN NAVIGATION, RESERVOIR AND IRRIGATION COMPANY
• Court: Kansas Supreme Court

65 P. 681

63 Kan. 394

THE STATE OF KANSAS, ex rel., v. THE LAKE KOEN NAVIGATION, RESERVOIR AND IRRIGATION COMPANY

No. 12,129

Supreme Court of Kansas

July 6, 1901

Decided January, 1901.

Error from Barton district court; ANSEL R. CLARK, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. IRRIGATION--Highways--Mandamus. A proceeding in mandamus may be maintained by the state to compel an irrigation company to construct bridges over highways which it obstructs by its ditches.

2. IRRIGATION--Duty of Company to Restore Highways. A corporation organized for irrigation purposes dug a canal, or ditch, which crossed public highways at different points along its course. Held, that it was the duty of the corporation to restore the highways intersected to a condition of usefulness and safety existing before the construction of the ditch, and it will be required to build all necessary bridges as a means to that end. Such duty is imposed by the common law, independently of statute.

C. F Diffenbacher, county attorney, and D. A. Banta, for The State.

Trimble & Braley, Osmond & Cole, and John A. Eaton, for defendant in error.

SMITH J. CUNNINGHAM, ELLIS, JJ., concurring.

OPINION

SMITH, J.:

This is a proceeding in error brought to review the action of the district court in refusing an application for a peremptory writ of mandamus. The application was made by the state, on the relation of the county attorney of Barton county, and against the Lake Koen Navigation, Reservoir and Irrigation Company, a corporation. The allegations in the application for the writ were, in substance, as follows:

The defendant is a corporation organized under the laws of this state for the purpose of constructing a canal or ditch from the Arkansas river to the "Cheyenne bottoms," in Barton county, and conducting the waters of said river to where there is in process of construction an artificial lake or reservoir for the storage of waters, and for the further purpose of maintaining said canal, ditch, and reservoir, ostensibly for navigation, reservoir, irrigation and other purposes incidental thereto. To carry out its ultimate designs, the defendant obtained a right of way consisting of a strip of land 100 feet wide, and extending over the lands situate between the point of inception of the canal or ditch and the "bottoms," except that part which was then occupied and used for public-highway purposes. The beginning of the canal or ditch is at the Arkansas river, and the ditch company has caused water to flow through it from the river to the "bottoms," across certain lands (describing them) and the intervening highways. Safe and adequate bridges have not been made, and the same are necessary by reason of the construction of the canal where it intersects the public highways at fourteen different points. Travel over the roads has been impeded and obstructed, to the great inconvenience and damage of the public, by reason of the failure of the irrigation company to construct bridges across its ditch at the places mentioned. The prayer is as follows:

"Wherefore, plaintiff prays for a writ of peremptory mandamus to be issued to the defendant, the Lake Koen Navigation, Reservoir and Irrigation Company, commanding that it forthwith proceed to the construction of safe and adequate bridges at each of the said points on the lines of the said ditch, or canal, where any of the aforesaid highways or public roads are crossed by the same, and where the same has in any manner impeded public travel, and for all such other proper relief," etc.

The irrigation company interposed two objections to the allowance of the writ: (1) That the proceedings were not prosecuted in the name of the real party in interest; (2) that the plaintiff was seeking, by the writ prayed for, the performance by defendant of an act which the law nowhere specially enjoins, that there was no legal obligation on the part of the defendant to do the things sought to be enforced, and that the judge had no legal authority to grant the writ. After a hearing, the court below overruled the first objection, but denied to the plaintiff any relief on the second ground, and refused the writ.

We agree with the court below in its conclusion that the plaintiff has the legal capacity to maintain the action. The failure on the part of the ditch company to construct bridges after it had cut through the public roads would amount to the destruction of the highway. It would be creating a purpresture, a public nuisance. While the board of county commissioners is given authority by statute to build and repair bridges, and to care for the same, and while it might compel by mandamus the duties imposed by law on the ditch company, yet the state has a paramount authority over the subject of highways. It is of...