Verdigris River Drainage Dist. 1, in Montgomery County v. State Highway Commission
| Decision Date | 09 May 1942 |
| Docket Number | 35299. |
| Citation | 125 P.2d 387,155 Kan. 323 |
| Parties | VERDIGRIS RIVER DRAINAGE DIST. NO. 1, IN MONTGOMERY COUNTY v. STATE HIGHWAY COMMISSION. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Where drainage district permitted county to cut levee and install drainage and floodgate under agreement that drainage district could make proper repairs at expense of county and at time agreement was entered into there was substantial amount of county road that was benefited by the new drain, the floodgate was constructed for benefit of county road system so that when state highway commission took over the road as part of the state highway system, the commission became liable on the contract for money expended by the drainage district in repairing the floodgate. Gen. St.1935, 68-418 68-506.
Where road was main traveled highway and was partly within and partly without city, board of county commissioners had authority to designate it as part of county road system. Gen.St.1935, § 68-506.
Where drainage district permitted county to cut levee and install drainage and floodgate with understanding that drainage district could make necessary repairs at expense of county members of board of county commissioners had authority to bind county by such contract beyond the term of office of those who were members of the board when the contract was made. Gen. St.1935, 24-407, subds. 14, 16, 24-408, subd. 3 and 68-115.
1. In an action by a drainage district to recover for money expended in repairing a floodgate pursuant to a contract between it and a county, it is held that the floodgate in question was constructed for the benefit of the county road system of the county, and that when the state highway commission took over the state highway system pursuant to G.S.1935, 68-418, it became liable on the contract in question.
2. The members of the board of county commissioners had authority to bind the county by a contract such as the one described by the foregoing paragraph of this syllabus beyond the term of office of the men who happened to be members of the board when the contract was made.
Appeal from District Court, Shawnee County, Division No. 1; George A. Kline, Judge.
Action by Verdigris River Drainage District No. 1 in Montgomery County against the State Highway Commission, etc., to recover money. Judgment for plaintiff and defendant appeals.
Otho W Lomax, of Topeka (Marc Boss, Asst. Atty. Gen., and A. Harry Crane, both of Topeka, on the brief), for appellant.
Charles D. Welch, of Coffeyville, for appellee.
This was an action for money. Judgment was for the plaintiff. Defendant appeals.
The petition alleged the nature of the parties and that the plaintiff was located in Montgomery county and many years ago had constructed and at the time the action was begun maintained a levee on the north, east and south sides of the district for the purpose of preventing the floodwaters of the Verdigris river from inundating the territory within the district; that about 1921 state highway 169 crossed the district from the north to south; that it was then a county road, maintained under the jurisdiction of the board of county commissioners of Montgomery county, and that prior to that time floodwaters from the city of Coffeyville would flood this road making it difficult to maintain; that the board of county commissioners on December 29, 1921, entered into a contract with the plaintiff whereby the plaintiff agreed to permit the county commissioners to cut its levee and install therein a drainage and floodgate which would take care of these floodwaters covering this road; that this contract contained the following clause:
"It is further agreed that in case first party (The Board of County Commissioners of Montgomery County), fails or neglects to properly maintain said drain and floodgate, then, that the second party may take such steps as to it shall appear to be necessary to properly maintain and repair the same, at the expense of the first party, and the first party agrees to pay to the second party all of the necessary expenses incurred by the second party in so maintaining and repairing said drain and floodgate."
The petition further stated that the board of county commissioners constructed this floodgate and also constructed a drain from the road in question whereby the water which formerly inundated the road flowed out through this drain; that on April 1, 1929, pursuant to G.S.1935, 68-418, the defendant state highway commission succeeded to the rights of the board of county commissioners, the county road in question became a part of the state highway system and is now known as state highway 169; that thereafter this floodgate became out of repair and the plaintiff in August of 1937 made demand upon the defendant to repair it and the defendant refused to do this and in December, 1937, the plaintiff caused the repairs to be made and incurred an expense of $1,160.44. The prayer was for that amount.
The answer of the state highway commission was a general denial. The answer then admitted that the plaintiff was an organized district; that the state highway commission was an administrative branch of the government; that it controlled the state system of highways and that the drainage district maintained in 1921 and now maintains the floodgates and levees in question. The answer then alleged that the levees and floodgates were installed to protect the lands of the plaintiff drainage district in the city of Coffeyville. The answer also admitted the making of the contract, a portion of which is quoted in the petition. The answer then alleged that the contract was made without any authority of law; was ultra vires and beyond the power of and authority of the board of county commissioners of Montgomery county; that the drainage of the then county road was a secondary consideration. The answer then contained allegations, the general purport of which was that the floodgate and drains in question were in fact installed and maintained for the benefit of the city and the drainage district rather than the county and later the highway commission.
The reply was a general denial and contained a further allegation that the floodgate had always served as a drain to protect the road in question and that this road after the passage of G.S.1935, 68-418, became a part of the state highway system and it became the duty of the highway commission to maintain it and that the floodgate in question always served to protect the road.
The case was submitted to the trial court without a jury. The court's findings, except two which will be noted hereafter, were agreed upon by the parties. The facts are that the drainage district constructed levees on its north, east and south sides shortly after its organization in March, 1907. Part of the city of Coffeyville lay within this district. Drains were constructed and fitted with floodgates at various points to let floodwaters out of the district.
In 1921, and for a long time before that, there was a county road running north from East Eighth street in Coffeyville to Cherryvale, Kan. The south 4,167 feet of that road, which is called Sunflower street, was within the drainage district. The west half of the south 2,425 feet from First to Eighth streets was within the city limits of Coffeyville. The entire road, including that part within the city, had been designated as a part of the county-road system, pursuant to the Laws of 1921, ch. 219, § 1, now appearing as G.S.1935, 68-506.
In September, 1927, the city extended its limits to include all the drainage system and all of the highway in question except the east half of Sunflower street between First and Sterling streets, a distance of 1,577 feet to the levee on the north.
On December 20, 1921, the drainage district and the county entered into the contract referred to in the petition. Prior to December 20, 1921, the city had constructed a drain from the corner of Fifth and Union streets north and east to Second street, thence east to and ending at the west boundary of what is now Sunflower street. From the corner of Second and Sunflower streets the drain extended south along the west side of Sunflower street to plaintiff's south levee and out through the floodgate. After the contract in question was executed the county commissioners constructed a ditch connecting this drain to a place on the east where the levee was cut and a drain installed therein. On April 1, 1929, pursuant to G.S.1935, 68-418, the defendant succeeded to the rights and liabilities of the county commissioners with reference to the state highway commission. Sunflower street is paved with a bituminous retread surface and it was impracticable for the city to maintain the equipment necessary for that type of surface. Since July 1, 1936, defendant has maintained the bituminous surface on that part of the old county road, which is within the city, being the west half of the road from First street north 1,577 feet and also that part of the old county road not within the city but which is within the drainage district, which is 4,167 feet in length. In 1937 the drain and floodgate in question became out of repair and plaintiff made the demand upon the defendant that was pleaded in the petition, but the defendant failed to repair it. In December, 1937, the plaintiff expended $1,160.44 repairing the floodgate. This was a reasonable charge for the work done. The itemized statement of this expense was handed the defendant and it refused to pay it.
The following two findings were not agreed upon. They are as follows:
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