Tillotson v. Fair

• Decision Date: 09 June 1945
• Docket Number: 36376,36379.,36378
• Citation: 160 Kan. 81,159 P.2d 471
• Parties: TILLOTSON v. FAIR et al. ATCHISON v. SAME. McCULLOUGH v. SAME.
• Court: Kansas Supreme Court

159 P.2d 471

160 Kan. 81

TILLOTSON v. FAIR et al.

ATCHISON v. SAME.

McCULLOUGH v. SAME.

Nos. 36376, 36378, 36379.

Supreme Court of Kansas

June 9, 1945

Rehearing Denied July 13, 1945.

Appeal from District Court, Sedgwick County, Division No. 1; Ross McCormick, Judge.

Consolidated action by Ava H. Tillotson, by Jennie Atchison, and by Violet Marie McCullough, against D. J. Fair and others, to recover damages for violation of plaintiff's rights in and to an alley and certain lands abutting thereon resulting from the construction of a drainage ditch in, over and upon such alley. From a judgment sustaining demurrers to petitions as amended, the plaintiffs appeal.

SMITH J., dissenting.

Syllabus by the Court.

1. Following Gresty v. Darby, 146 Kan. 63, 68 P.2d 649 and Evans v. Marsh, 158 Kan. 43, 145 P.2d 140, it is held:

'It is the general rule of law that state or municipal officials, performing the duties imposed upon them by statutes creating their respective offices and prescribing their duties, and exercising in good faith the judgment and discretion necessary therefor, are not liable personally in damages for injuries to private individuals resulting as a consequence of their official acts.' (Syl. par. 1)

2. The State Highway Commission in the exercise of the general powers conferred upon it by statute in the matter of the construction of highways when it undertakes the construction of a highway project and appropriates property for that purpose without condemnation is nevertheless dealing with a matter over which it has general jurisdiction and is operating under color of authority. Officials and employees of that department who, in good faith, perform acts incident to the construction of such a project come under the rule announced in the preceding syllabus and are not personally liable in damages for the consequences of their official action in connection therewith.

3. An independent contractor who is awarded a contract by the State Highway Commission for the construction of a highway improvement authorized by statute and who performs that contract according to its plans and specifications with proper care and skill is not liable in damages for injuries involved in the performance thereof after the work required by its terms has been completed and the improvement has been turned over to and accepted by the Commission.

4. Petitions in consolidated actions to recover damages from individuals participating in the initiation and completion of a highway project examined, and held, the petitions in each case failed to state a cause of action against the defendants named therein and demurrers thereto were properly sustained by the trial court.

Robert R. Hasty, of Wichita, for appellants.

Otho W. Lomax, Asst. Atty. Gen. (T. M. Stratton, of Osage City, on the brief), for appellees the commissioners, officials, and employees of the State Highway Commission.

Glenn Porter, of Wichita (Getto McDonald, Dwight S. Wallace, and William Tinker, all of Wichita, on the brief), for appellee Stannard Construction Co.

A. D. Weiskirch, of Wichita (George B. Collins and C. L. Williams, both of Wichita, on the brief), for appellee Frank Benbow.

PARKER Justice.

These are consolidated actions for damages wherein the plaintiffs expressly state in their petitions they base their right to recover from the defendants personally on one cause of action only, namely, in tort for violation of their rights in and to an alley and certain lots abutting thereon, resulting from the construction of a drainage ditch in, over, and upon such alley and make no claim against the State of Kansas. The defendants demurred to the petitions as amended. The demurrers were sustained and the plaintiffs appeal.

The plaintiffs are the owners of the lots in question. Defendants are individual members of the State Highway Commission of Kansas and its director alleged to have directed the construction of, employees of that agency charged with the preparation and completion of plans and specifications for, and contractors claimed to have performed according to such plans and specifications the work on, the drainage ditch heretofore mentioned and hereinafter more fully described.

Some diversity appears in the language to be found in the amended petitions, but we regard discrepancies as of minor importance to disposition of the issues. For that reason, and since the cases are consolidated, we shall review questions presented by the appeal giving material allegations appearing in the three amended petitions the same force and effect as if all averments in each were incorporated in one pleading. Hereafter, for purposes of convenience, we shall refer to that pleading as the petition.

Certain portions of the petition can be summarized as follows: On October 2, 1929, the Bonaventure Town Site Corporation prepared and filed a plat known as Travel Air City, Sedgwick County, Kansas, in accordance with the requirements of G.S.1935, 19-2633, the plat providing 'the streets, avenues and alley are hereby dedicated to and for the use of the public'. The town, which is unincorporated, is located about two and one-half miles east of the city of Wichita. It has modern houses, available school facilities, business buildings and a population of approximately one hundred.

Block 8, a part of the town site, was planned as and is the only business block. It is divided midway by an alley, the only one in the site, eighteen feet in width which intersects Goebel street on the east and Hoyt street on the west. Subsequent to the platting of the addition, Ava H. Tillotson purchased Lot 9, Jennie Atchison Lot 18 and Violet Marie McCullough Lots 19 and 20. These lots face Central Avenue on the south and extend from that street northward to a point where they abut on the alley, the south line of which is the north line of plaintiffs' properties and which provides the only means of access from the rear to buildings located thereon.

Sometime in the spring of 1943 the State Highway Commission condemned a tract of land twenty-five feet in width off the portion of lots situated north of the alley and directly across the alley from those of plaintiffs, but not including any portion of such alley, for a diversion ditch. Thereafter, the commission entered into a contract with the Stannard Construction Company, which defendant by and through its sub-contractor, Frank Benbow, pursuant to plans and specifications prepared by the commission, constructed an open drainage ditch twenty-five feet in width at the top, approximately eight feet in depth and ten feet in width at the bottom, between Goebel and Hoyt streets. In its construction seven feet of the land so condemned and all of the alley was excavated and used for drainage purposes with the result that when completed such ditch entirely obliterated the alley, completely obstructed traffic thereon, did away with the possibility of its use for traffic purposes by the public or by plaintiffs and entirely destroyed its value and use as a means of ingress and egress to and from plaintiffs' properties or for any other use except that for which the ditch was constructed. The petition also states that as completed and now existing such ditch is dangerous to persons who might be within the vicinity in that no safeguards are provided for protection against falling into it, that it carries running sewage continuously which is unsightly, unsanitary and dangerous to the health and well being of plaintiffs and other persons living in the community, and that the general appearance and condition as described all combine to affect the value of plaintiffs' property and the damage resulting to them from its construction.

The petition further alleges the alley was appropriated and used for drainage purposes without condemnation proceedings or any other legal right to enter thereon and use it for such purposes, that the action of the defendants was without authority in law or any notice to, or consent of the plaintiffs and in violation of their property rights flowing from their ownership of the lots in question and their rights to the use thereof, and that no compensation has been paid plaintiffs for the damages suffered by them as the result of such action.

Other allegations of the petition relate to facts, circumstances and conditions, relied on by plaintiffs to establish liability against the defendants as individuals instead of the State Highway Commission which actually sponsored the drainage project and authorized its construction and completion. It would serve no useful purpose to detail them at length. In substance their fair import is that the State Highway Commission had no legal right to appropriate the alley for drainage purposes and construct the diversion ditch resulting in the damage to plaintiffs' property rights without condemnation or other proper legal proceedings and in doing so exceeded the power and jurisdiction conferred upon it by statute; that since its action was unauthorized, the defendant engineers and employees who participated in the preparation of plans and specifications and had anything to do with the project in question, the members of the commission and its director who authorized its commencement and completion and the contractors who actually performed the work were each and all engaged in a joint enterprise for the construction of the ditch, were acting beyond the scope of their power and without color of authority, and when it was completed became severally and jointly liable to the plaintiffs, irrespective of the character of service performed or the date when rendered, for all damage resulting to their property rights from the construction of such ditch even though at all times in question they were...