Todd v. The Kaw Valley Drainage District of Wyandotte County

• Decision Date: 12 November 1921
• Docket Number: 23,235
• Citation: 109 Kan. 754,201 P. 1096
• Parties: WILLIAM M. TODD, Appellant, v. THE KAW VALLEY DRAINAGE DISTRICT OF WYANDOTTE COUNTY, Appellee
• Court: Kansas Supreme Court

201 P. 1096

109 Kan. 754

WILLIAM M. TODD, Appellant, v. THE KAW VALLEY DRAINAGE DISTRICT OF WYANDOTTE COUNTY, Appellee

No. 23,235

Supreme Court of Kansas

November 12, 1921

Decided July, 1921.

Appeal from Wyandotte district court, division No. 2; FRANK D HUTCHINGS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

DRAINAGE DISTRICT -- Negligence of Foreman -- Injury to Workman -- District Not Liable for Damages. Where a drainage district organized upon the petition of two-fifths of the resident taxpayers under a statute the purpose of which is to benefit the public by protecting persons and property from injury by floods, is engaged in clearing out the channel of a river, no liability on its part arises by reason of an injury to one of its workmen through the negligence of his foreman, there being no specific statutory provision in reference thereto.

J. L. Smalley, and D. F. Carson, both of Kansas City, for the appellant.

Thomas A. Pollock, of Kansas City, for the appellee.

OPINION

MASON, J.:

William M. Todd sued the Kaw Valley Drainage District alleging that while working as a deck hand on a dredge-boat used by it in cleaning out the channel of the Kansas river he was injured as the result of the negligent conduct of the foreman. A demurrer to his evidence was sustained, and he appeals.

The sole question presented is whether a drainage district organized under the Kansas statute by the board of county commissioners, upon the petition of two-fifths of the resident taxpayers, is liable for the negligent acts of its agents while carrying out work of the character indicated.

The prevailing view has been that drainage districts are essentially governmental in their functions and for that reason are not answerable in damages for the negligence of their officers or employees unless the statute expressly (or by such clear implication as amounts to the same thing) so provides. The plaintiff asserts that a tendency has recently developed to abandon this position. It is true that in Illinois earlier decisions on the subject appear to have been modified in this direction. But the distinctions there made are to some extent at least based upon features of the statute giving the drainage districts a commercial character not possessed by those of this state. A recent Nebraska case however seems to support the plaintiff's contention, the statute involved being quite similar to our own. (Bunting v. Oak Creek Drainage District, 99 Neb. 843, 157 N.W. 1028.) The modification of the Illinois doctrine is there referred to and stress is laid upon the consideration that drainage districts are voluntary corporations existing principally for the benefit of the owners of the land within their boundaries. It has elsewhere been argued that districts of this nature, although brought into being only on the application and with the consent of a certain percentage of the inhabitants, are not properly classed as voluntary, because the organization is forced upon at least a nonconsenting minority of the residents. The present state of judicial opinion on the general question, and the reasoning upon which the conflicting views are based are so fully exhibited in a recent note as to make a detailed discussion here unnecessary. (L. R. A. 1918 B, 1010.)

While this court has not heretofore passed upon the specific question now presented, the test of liability of public bodies it has applied, and the effect it has given to the statute relating to drainage districts, compel the affirmance of the judgment of the trial court upon these grounds: The purpose of the legislature in providing for the organization of drainage districts like the defendant was to preserve and protect life and property from the ravages of floods. (Drainage District v. Railway Co., 87 Kan. 272, 278, 123 P. 991; Railway Co. v. Montgomery County, 93 Kan. 319, 144 P. 209.) It might have created the districts by its own direct action, or it might have provided that districts should be created wherever certain conditions existed. It evidently concluded however that the self-interest of those most directly, but not solely, concerned could be relied upon as a sufficient incentive to bring about the desired improvements so far as they are vitally necessary. "The power [to create a drainage district] is exercised by the legislature itself by the passage of the drainage act, which is to become operative in any part of the state when certain conditions are found to exist, and certain agencies or instrumentalities for which it provides are organized. The operation of the law does not depend on the will of the petitioners, but it is the will of the legislature which is to be put in force when the board of county commissioners find that the prescribed conditions exist within the district which the petitioners ask to have incorporated. If the conditions are found to exist a corporation is organized and an election held to choose the officers of the district, who proceed to make the improvements as the legislature has provided." ( Railroad Co. v. Leavenworth County, 89 Kan. 72, 79, 130 P. 855.) An inference that the owners of property within a district were regarded as the sole beneficiaries of the...