Wallace v. Evans

• Decision Date: 04 April 1890
• Citation: 23 P. 596,43 Kan. 509
• Parties: JOHN WALLACE et al. v. JOSEPH EVANS
• Court: Kansas Supreme Court

23 P. 596

43 Kan. 509

JOHN WALLACE et al. v. JOSEPH EVANS

Supreme Court of Kansas

April 4, 1890

Error from Norton District Court.

THE case is stated in the opinion.

Judgment reversed and new trial granted.

L. H Thompson, for plaintiffs in error.

John R Hamilton, for defendant in error.

SIMPSON C. All the Justices concurring.

OPINION

SIMPSON, C.:

The plaintiff below brought his action to recover the sum of $ 400, the alleged value of a pair of mules, and $ 200 as exemplary damages. He alleged that in August, 1882, Wallace constructed a dam across a creek that caused the water to fill up a ravine across which ran a public highway that had been located, opened and traveled long before the construction of the dam; that the water had flowed into the ravine until, at the time complained of, it was ten feet deep, and was a hazardous and dangerous obstruction to travel on said highway; that Wallace had sold said dam to Railsback, who, at the time the injury occurred, owned and maintained said dam; that on the 9th day of September, 1885, the plaintiff with his team of mules was traveling on said highway, with no knowledge of the dangerous condition thereof at the place it crossed the ravine, and that in attempting to cross said ravine his two mules were drowned in the water flowing into said ravine, by reason of the construction of said dam. The defendants demurred to the petition, and their demurrer was overruled. They then answered, alleging among other things, that at the time the dam was built, they caused a safe and suitable embankment to be made of brush, earth and other material across said ravine, on the line of said highway, thereby making a safe and suitable crossing; that this crossing was turned over to the road district and accepted by it, and these defendants were released from any further liability or any obligation to keep up and maintain said crossing. They also pleaded contributory negligence. Cause tried at April term, 1887, by the court, who rendered a judgment for $ 400. A motion for a new trial being overruled, Wallace and Railsback bring the case here. They claim that the trial court erred in overruling their demurrer to the petition and evidence; that the right of action is barred by the statute of limitations, as the dam was constructed under § 14, ch. 66, Comp. Laws of 1885; that there was a misjoinder of parties defendant; that there was an obligation resting on the road district to maintain the crossing and keep it in repair; that the evidence shows contributory negligence.

I. The petition in this case alleges that the place at which the loss occurred to the plaintiff below was a public highway, and alleges an obstruction thereof that was the cause of the loss of the mules. The erection of a dam caused the water to fill up a ravine across which the public highway ran. The man who built the dam constructed across the ravine an embankment of stone, logs, brush and earth, that made a good, safe and reliable crossing as long as it was maintained in the condition in which it was constructed. It was shown at the trial that the road overseer had caused work to be done thereon, and that for some years it was constantly used and reasonably safe. Wallace, one of the plaintiffs in error, built the dam and the embankment, and after owning the mill-property, including the dam, for about one year, sold and conveyed it to one Page, who subsequently sold it to Railsback, the other plaintiff in error, who owned the dam at the time of the loss of the mules. On this state of facts it must be apparent that no liability can possibly attach to Wallace for the loss. Putting this question in the strongest possible attitude for the defendant in error, and assuming for that purpose that the erection of the dam and the back-water in the ravine was a continuing nuisance, yet still Railsback, and not Wallace, is responsible for the damages occasioned by it. When Wallace sold the dam and some one else purchased it and assumed all liability, there seems to be no point of view in which Wallace could be held longer responsible. The judgment against him is wrong.

II. To constitute an obstruction to a public highway, it must appear that the public travel by reason thereof is actually hindered and endangered. No private action can be maintained if the obstruction continues and becomes a common nuisance on account of the nuisance per se; but if any individual suffers a more special injury than any other, from...