Tompkins v. Brown

• Decision Date: 07 November 1931
• Docket Number: 30084.
• Citation: 4 P.2d 454,134 Kan. 111
• Parties: TOMPKINS v. BROWN et al.
• Court: Kansas Supreme Court

4 P.2d 454

134 Kan. 111

TOMPKINS v. BROWN et al.

No. 30084.

Supreme Court of Kansas

November 7, 1931

Syllabus by the Court.

"Natural water course" is distinct channel cut in soil by running water having a bed and banks discernible by casual glance.

In suit to restrain lower landowners from erecting and maintaining dam, evidence sustained finding that waterway in question was natural water course.

The definition of a natural water course, as given in the decisions cited in this opinion, approved and followed to the effect that it must be a distinct channel cut in the soil by running water and having a bed and banks discernible by casual glance.

The evidence in this case considered, and held to be sufficient to support a general finding that the waterway in question was a natural water course under the recognized and approved definitions thereof.

Appeal from District Court, Montgomery County; J. W. Holdren, Judge.

Suit by O. M. Tompkins against Nannie K. Brown and others. From an order of injunction, defendants appeal.

Chas Bucher and Barney Bucher, both of Coffeyville, for appellants.

A. R Lamb and Clement A. Reed, both of Coffeyville, for appellee.

HUTCHISON J.

This is an appeal from an order of the trial court enjoining and restraining lower landowners from erecting and maintaining a dam obstructing the flow of water over their land so as to cause the water to back up over and on the premises of the plaintiff, an upper landowner. The action was not only for an injunction, but also for damages claimed to have been already sustained by the plaintiff by reason of the water being backed up upon his premises, but the injunction feature is all that has thus far been tried.

The petition is apparently drawn by the plaintiff so as to cover two theories: First, that the defendants have no right under the common law to dam up a natural water course, thereby backing up the water upon an upper landowner to his injury; and second, that the defendants, being the owners and in possession of the land that is used exclusively for agricultural purposes, lying wholly outside the limits of any incorporated city, are prohibited from constructing or maintaining a dam for the purpose of obstructing the flow of surface water on their land to the damage of the upper landowner or proprietor, because of the provisions of R. S 24--105, which are as follows: "A lower owner or proprietor shall not construct or maintain a dam or levee for the purpose of obstructing the flow of surface water onto his land to the damage of the adjacent upper owner or proprietor; but nothing herein shall be construed as preventing an owner of land from constructing a dike or levee along the bank of a natural watercourse to repel flood water from such natural watercourse: Provided, That the provisions of this act shall apply only to lands used for agricultural purposes and highways lying wholly outside the limits of any incorporated city."

The defendants insist that the obstruction complained of is that of the drainage of surface water only, and not an obstruction of any waterway or natural water course as defined by the text-books and by the decisions of this court, and further, that the restrictions in the last provision of R. S. 24--105 make that section inapplicable to the facts in this case.

The trial court did not make special findings of fact but a general finding in favor of the plaintiff and against the defendants, so that the findings and determination may have been under either or both of the theories urged by the plaintiff, as above stated.

The evidence shows that the property of the plaintiff consists of three residence lots in the city of Coffeyville, with a residence thereon. Under it there is a cellar, and near the house is a garage. The house is used and occupied by the plaintiff as his residence. Directly east of his lots is Walnut street, which is the east boundary line of the city, and directly east of Walnut street is the farm of the defendants which was regularly farmed until two years ago when the portion near the street was used for pasture, and the land farther west has been regularly farmed. The land west of this farm slopes from three directions to a low point on the east side of Walnut street nearly opposite the plaintiff's lots, draining the surface water not only off the plaintiff's lots in that direction but from a distance of about five blocks from the north, about two blocks from the west, and two blocks from the south. What is now Walnut street was constructed as a dirt road nearly twenty years ago with a ditch on each side of it and a culvert underneath it emptying on the east side of the road at or near this low place. Before the construction of the dirt road, this drainage water regularly went onto the defendants' farm crossing it in a southeasterly direction to the Verdigris river. At times of heavy rains, a large quantity of water would drain to that low point on the east side of Walnut street and cross over into defendants' field. The plaintiff describes the channel or course from this point on the east side of the road where the water passed under the fence and over the defendants' farm, as follows: "In my judgment this ditch and channel was, maybe, ten or twelve feet wide where it went through on Brown's place on the east side. There was a well formed waterway there, like a drain across a field would make, and where it went under the fence, I suppose it was two feet lower than the fence, about a foot, or two feet lower than the fence. The bed of this channel was quite a bit lower than the other territory in that vicinity. I would judge where it went through the fence there it was something like a foot and a half deep."

No other witness attempts to describe the channel, but some of them refer to it as a low place, and other witnesses speak of it as a "natural watercourse," a "natural course," without describing it. Some said the...