Whitehair v. Brown

• Decision Date: 05 June 1909
• Docket Number: 15,897
• Citation: 80 Kan. 297,102 P. 783
• Parties: JOHN WHITEHAIR et al. v. JACOB BROWN
• Court: Kansas Supreme Court

102 P. 783

80 Kan. 297

JOHN WHITEHAIR et al. v. JACOB BROWN

No. 15,897

Supreme Court of Kansas

June 5, 1909

Decided January, 1909.

Error from Dickinson district court; OSCAR L. MOORE, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. EASEMENTS--Prescriptive Right to Maintain a Dam--Interference by Riparian Landowners. Where a dam across a stream has been maintained for fifteen years--the period of limitation for actions to determine an interest in real property--the right to its continued maintenance can not ordinarily be assailed by upper riparian landowners.

2. EASEMENTS--Grounds for Injunction--Unusual Overflow of Riparian Land. Assuming that the right acquired by the maintenance of a dam for the period of limitation is not measured by its height, but by the actual extent to which it has caused the overflow of riparian lands, a showing made by a landowner that it has recently occasioned the temporary flooding of his property to a greater extent than ever before does not necessarily entitle him to an injunction against it. He must also show reasonable grounds for fearing the recurrence of the conditions occasioning his new injury with such frequency as seriously to affect the value of his land or other considerations rendering his remedy at law inadequate.

3. EASEMENTS--Grounds for Injunction--Change of Use. The prescriptive right acquired by the maintenance of a dam across a stream for the period of limitation is not affected by the purpose for which the water-power is employed. A riparian owner who by lapse of time has lost the right to object to a dam used to operate a flouring-mill can not enjoin its continuation as a means of providing power for an electric-light plant, unless upon a showing that such change operates to his prejudice by causing a greater obstruction to the flow.

Edward C. Little, for the plaintiffs in error; Pollock & Little, of counsel.

G. W. Hurd, and Arthur Hurd, for the defendant in error.

OPINION

MASON, J.:

In 1874 a dam was erected across the Smoky Hill river, upon land which was purchased by Jacob Brown in 1894. The dam was then partly washed out, but he rebuilt it and maintained it until 1904, when a part of it was again washed away. As he was preparing to rebuild it John Whitehair and other upper riparian landowners sought to enjoin him from doing so. Having been denied relief, they prosecute error.

The defendant claimed that the dam had been maintained continuously (except for the intervals due to the washouts) from the time of its construction, at the same height at which he proposed rebuilding it. The trial court so found, and of this the plaintiffs vigorously complain. There was very positive testimony to the contrary, and even that of the defendant's witnesses was somewhat indefinite and contradictory. But after a careful reading of the abstracts we can not say that there was an entire lack of evidence in support of the finding, and it must therefore stand.

The dam having been maintained for more than fifteen years, the owner's right to continue it became unassailable by those whose property had been encroached upon to the same extent during all of that time. (8 A. & E. Encycl. of L. 711; 1 High, Inj., 4th ed., § 799; 2 Farnham, Waters & Water Rights, § 558.) The fact that it had been out of repair and out of use for a considerable period at the time Brown purchased it is not important, for the prescriptive right had already been perfected, and was not lost by an interruption in its exercise. (8 A. & E. Encycl. of L. 714; 2 Farnham, Waters & Water Rights, § 562.) The plaintiffs, however, showed that in 1903 and in 1904 a portion of their lands above the dam were overflowed for the first time, and they maintain that the injury thereby occasioned was new and not within the protection of the prescription. There is some conflict in the authorities as to the rule applicable in such a case. The majority of the decisions support the test thus formulated in volume 8 of the American and English Encyclopaedia of Law, at page 713:

"The extent of the right to flow the lands of another acquired by prescription is not determined by the height of the structure of the dam, but is commensurate with the actual enjoyment of the easement, as evidenced by the extent to which the land of the owner of the servient tenement was habitually or usually flowed during the period of prescription."

As stated in a note to this text:

"In several states the rule has been laid down that a prescriptive right to flow lands by a dam is measured by the efficient height of the dam, in its ordinary action and...