Welch v. Kansas City

• Decision Date: 07 March 1970
• Docket Number: No. 45580,45580
• Citation: 204 Kan. 765,465 P.2d 951
• Parties: Roy WELCH and Barbara Welch, Appellants, v. The City of KANSAS CITY, Kansas, a Municipal Corporation, Appellee.
• Court: Kansas Supreme Court

Page 951

465 P.2d 951

204 Kan. 765

Roy WELCH and Barbara Welch, Appellants, v. The City of KANSAS CITY, Kansas, a Municipal Corporation, Appellee.

No. 45580.

Supreme Court of Kansas.

March 7, 1970.

Syllabus by the Court

1. It is the general rule that a municipality is liable for damages occasioned to the property of others from the overflow of surface waters cast upon such property through the action and fault of the municipality, its offices, employees and agents.

2. The liability of a city for damages under conditions as set forth in the foregoing syllabus is not a liability created by statute, nor by the provisions of either K.S.A.1969 Supp. 12-101 or K.S.A. 12-105, but rather the cause of action predicated thereon is one sounding either in nuisance or trespass, and action thereon in barred by the two-year statute of limitations.

3. An action to recover damages to property resulting from the overflow of water allegedly due to the inadequacy of storm sewers and drainage facilities constructed by a city under its streets adjacent to the damaged property must be brought within two years after such overflow occurs or it will be barred by the provisions of K.S.A. 60-513.

4. The filing of the written statement required of a claimant by K.S.A. 12-105 as a condition precedent to bringing an action is not a part of the cause of action but merely a preliminary step in the filing of a lawsuit on a previously accrued cause of action.

5. The statute of limitations on a claim for physical injury or damage to property begins to run from the date of injury and not from the date on which the written statement required by K.S.A. 12-105 is filed with the city clerk.

6. Statutes of limitation serve a useful purpose in preventing the presentation of stale claims and encouraging diligence on the part of prospective litigants, and the same may not be ignored.

7. The record is examined in an action brought to recover damages occurring to the property of plaintiffs from the overflow of waters allegedly due to faulty and inadequate drains and storm sewers constructed by the defendant city under its adjoining streets and it is held for reasons appearing in the opinion that the trial court did not err in entering summary judgment in favor of the city.

Lloyd Burke Bronston, Kansas City, argued the cause and was on the brief for appellants.

Edward H. Powers, II, Asst. City Atty., argued the cause, and C. W. Brenneisen, Jr., City Atty., was with him on the brief for appellee.

FONTRON, Justice.

In this action Mr. and Mrs. Welch, the plaintiffs and appellants herein, have sued the city of Kansas City, Kansas, to recover damages occasioned to their property from flooding. The trial court sustained the city's motion for summary judgment and the plaintiffs have appealed.

On the 12th day of June, 1966, a severe rainstorm occurred in Kansas City which flooded the Welch property, water entering the basement of plaintiffs' home and damaging both the residence and certain personal property. The plaintiffs allege the flooding was due to inadequate storm sewers and draingage facilities under adjoining streets.

A written statement of the plaintiffs' claim against the city was filed on July 29, 1966, as required by K.S.A. 12-105, and no issue is raised as to its sufficiency. The present lawsuit was commenced July 2, 1968, more than two years after the damage is alleged to have occurred but within two years from the date on which plaintiffs filed their written statement with the city clerk.

The city's motion for summary judgment was bottomed on the premise that plaintiffs' action was barred by the statute of limitations, and such was the basis on which the motion was sustained. Thus the sole issue before us in this appeal is whether the plaintiffs commenced this lawsuit within the time permitted by statute.

In support of the plaintiffs' contention that their action was timely filed, two arguments are advanced: First, that the cause of action is one based upon a liability created by statute, and thus the three-year limitation set out in 60-512(2) is applicable, and second, that the cause of action accrued July 29, 1966, when the written statement required by K.S.A. 12-105 was filed. In a sense these points are interwined and plaintiffs' positions, interdependent. We believe however that neither position is tenable.

So far as material to this lawsuit, K.S.A. 60-512 reads as follows:

'The following actions shall be brought within three (3) years: * * * (2) An action upon a liability created by a statute other than a penalty or forfeiture.'

In their printed brief, the plaintiffs seem to imply that a city's liability in a case of this character is created by that portion of K.S.A.1969 Supp. 12-101 which provides:

'* * * Each city being a body corporate and politic, may among other powers--

'First. Sue and be sued.'

However, we were informed upon oral argument that plaintiffs are no longer relying on this provision to establish their cause of action as statutory in nature. Such being conceded, we need pursue this facet of plaintiffs' contention no further than to express agreement with their present view of the statute, and to say that in our opinion 12-101 relates to corporate powers of a municipality rather than to the creation of liabilities against it. The areas and limits of municipal liability are largely defined by case law, not by statute.

But the plaintiffs seriously maintain that K.S.A. 12-105 gives rise to a cause of action against a municipality, and that a statutory liability thus exists against Kansas City in this case. We are obliged to disagree. This statute, which will be set out more fully later on, makes no pretense of creating a liability; it simply establishes a procedure with which a litigant must comply before maintaining an action against a city, regardless of what may be the basis of the asserted liability.

In the recent case of Grantham v. City of Topeka, 196 Kan. 393, 411 P.2d 634, we discussed various bases upon which municipal liability may be predicated. Commencing on page 397, Mr. Justice Fatzer, speaking for the court, said this:

'It is a general rule of law in this state that a municipality is not liable for negligent acts of its officers or employees in the performance of a governmental function unless such liability is expressly imposed by law. (Wray v. City of Independence, 150 Kan. 258, 92 P.2d 84; Rhodes v. City of Kansas City. 167 Kan. 719, 208 P.2d 275; Stolp v. City of Arkansas City, 180 Kan. 197, 303 P.2d 123; Rose v. Board of Education, 184 Kan. 486, 337 P.2d 652; Parker v. City of Hutchinson, 196 Kan. 148, 410 P.2d 347.) The rule is based on the doctrine that the state is not liable except as made so by statute and that municipalities, when acting in a governmental capacity, are arms of the state. (Perry v. City of Wichita 174 Kan. 264, 255 P.2d 667; Weast v. Budd, 186 Kan. 249, 253, 349 P.2d 912.) However, exceptions have been engrafted into this general rule by decisions of this court of the effect that a municipality is liable (1) where its conduct results in creating or maintaining a nuisance (Jeakins v. City of ElDorado, 143 Kan. 206, 53 P.2d 798; Steifer v. City of Kansas City, 175 Kan. 794, 267 P.2d 474; Adams v. City of Arkansas City, 188 Kan. 391, 362 P.2d 829), and (2) for its negligent and wrongful acts (a) when performing in a proprietary capacity (Dunn v. City of Emporia, 181 Kan. 334, 311 P.2d 296), and (b) for failure to keep its streets reasonably safe for public use. * * *' (Emphasis supplied.)

It appears to be the universal rule that municipal corporations are liable for damages occasioned to private property from the overflow of surface waters cast upon it through the action and fault of the municipality, its officers and agents. (38 Am.Jur., Municipal Corporations, § 645.) For many years Kansas has consistently followed this rule. Among our early cases, see Kansas City v. Slangstrom, 53 Kan. 431, 36 P. 706; and King v. City of Kansas City, 58 Kan. 334, 49 P. 88.) In a much more recent case, Reeder v. Board of County Commissioners, 193 Kan. 182, 392 P.2d 888, we held that an action of mandamus will lie against the Board of County Commissioners to restore a water course and to prevent the Board from effecting changes therein to the damage of plaintiff's lands.

Recovery of damage in cases of this character has usually been said to sound in the nature of nuisance or, occasionally, as was said in King, supra, in the invasion of individual rights in the nature of trespass. Never, to our knowledge, has the cause of action been said to originate in the filing of the written statement required by K.S.A. 12-105. In every case where the limitation upon actions of this character has been involved, the two-year statute, K.S.A. 60-513, has been applied.

In Parker v. City of Atchison, 58 Kan. 29, 48 P. 631, it was held:

'Where a permanent improvement is made by a city on the bank of a water course, in such a way as to narrow the channel, and wash and injure private property on the opposite bank, the city is liable for the injury; but an action therefor can only be brought within two years after the erection of such improvement.' (Syl. 4.)

The holding in Beard v. Kansas City, 96 Kan. 102, 150 P. 540, is to like effect:

'Where a city improves a street and causes water from heavy rainfall to overflow adjacent premises, the owner of the premises may maintain an action for damages...