Thierer v. Board of County Com'rs of Geary County, 46856

• Decision Date: 14 July 1973
• Docket Number: No. 46856,46856
• Parties: Henry THIERER and Nellie Thierer, Appellants and Cross-Appellees, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF GEARY, Kansas, Appellees and Cross-Appellants.
• Court: Kansas Supreme Court

Page 343

512 P.2d 343

212 Kan. 571

Henry THIERER and Nellie Thierer, Appellants and Cross-Appellees, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF GEARY, Kansas, Appellees and Cross-Appellants.

No. 46856.

Supreme Court of Kansas.

July 14, 1973.

Syllabus by the Court

1. An issue not presented to the trial court cannot be a subject for appellate review.

2. An action for permanent damages to farm land accrues when substantial injury is reasonably ascertainable. (K.S.A.1972 Supp. 60-513.)

3. An action for permanent damages to farm land encompasses past, present and future losses, and when such an action is barred by the statute of limitations an action for a mandatory injunction to remedy a part of the damages is also barred by the statute of limitations.

4. In an action to recover damages to farm land the trial court did not err in finding plaintiffs' cause of action was for permanent damages and the action for damages was barred by the statute of limitations.

Geo. V. Allen, Lawrence, was on the brief for appellants and cross-appellees.

John H. Taylor, County Atty., was on the brief for appellees and cross-appellants.

OWSLEY, Justice:

This is an appeal by plaintiffs, Henry and Nellie Thierer, from a decision of the trial court denying judgment for damages due to flooding and denying a mandatory injunction against the defendant county commissioners. Defendants cross-appeal from a mandatory injunction ordering them to provide access to plaintiffs' farm land by means of a suitable crossing over Thierer Branch of McDowell Creek.

Plaintiffs are owners and operators of a farm in Geary County, Kansas, through which meanders a stream. Their thirteen-acre tract of creek bottom land is protected from high water by a levee maintained by plaintiffs. In 1959, defendants caused the channel of Thierer Branch upstream from plaintiffs' land to be altered in connection with relocating a bridge and county road. Due to drought conditions plaintiffs noticed no immediate effect on their property. In 1962, the effect of the upstream alteration of the channel was first manifest when the levee broke and the thirteen-acre tract was partly flooded. They repaired the levee, but it was broken by high water and the field flooded again in 1966. Plaintiffs contend the flooding was due to the increased flow caused by re-channeling upstream.

Access to the thirteen-acre tract was gained by a low-water crossing from Davis Creek Road; that is, the crossing was not by bridge over the stream, but was made by turning off the road and driving through shallow water at a point where the stream bed had a rock-gravel bottom. Plaintiffs testified they first became aware that their low-water crossing was no longer passable by truck or other farm implement in 1966. The water at that place was four or five feet deeper than formerly and it was unsafe to drive a vehicle through. The raising of the level of the adjacent roadway made the bank opposite their land higher and the incline too steep for farm equipment. They could sometimes drive from the county road through the creek into their field, but only if the water was below normal level. They could not get implements for harvesting the crops out of the field, even at low water periods, due to the incline of the bank. Plaintiffs testified they lost about half their crops due to lack of access at harvest time in 1966, 1967, 1968 and 1969. The county commissioners attempted to restore the crossing several times during 1966 and 1967 by grading the banks and hauling gravel into the stream, but the crossings were washed out by the normal flow of the stream and by harvest time of each year were impassable.

In 1967, plaintiffs brought this action praying for $10,000 damages for loss due to flooding in Count I, for a mandatory injunction against defendants ordering them to restore access to plaintiffs' field in Count II, and for a mandatory injunction ordering defendants to restore the channel upstream to its former condition in Count III.

After trial to the court, plaintiffs were awarded judgment based upon Count II only, a mandatory injunction against defendants to provide access across the stream. Plaintiffs appeal from the judgment denying money damages for flooding (Count I), and denying a mandatory injunction ordering defendants to restore the upstream channel (Count III). Relief on Counts I and III was denied based upon the trial court's finding that plaintiffs' causes of action were for permanent damages and that such damages were reasonably ascertainable when the levee broke in 1962. The court concluded as a matter of law that K.S.A. 60-513(4), the two-year statute of limitations on tort actions, barred recovery on Counts I and III.

On appeal, plaintiffs assert their prayer in Count I was not for permanent damages from the channeling, but for temporary damages done by flood waters and erosion of the access crossing. Unfortunately, there was neither pretrial conference in this case, nor order clarifying the issues upon which the parties went to trial. We must rely upon the pleadings and evidence adduced at trial and as reproduced in the record on appeal for support of trial court's findings and conclusions as to plaintiffs' theory of recovery. The findings of fact of the trial court will not be disturbed on appeal if there is substantial competent evidence in the record to support them. (Fine v. Neale Construction Co., 186 Kan. 537, 352 P.2d 404; Dennis v. Smith, 186 Kan. 539, 352 P.2d 405.)

Count I of the petition filed November 15, 1967, reads as follows:

'2. That some time after June, 1958, the defendant, through its agents, servants and employees, changed the course, current, and cross-section of a stream known as Thierer Branch within the State of...