Williams v. City of Wichita

• Decision Date: 17 September 1962
• Docket Number: No. 42312,42312
• Parties: Don WILLIAMS, Appellee. v. The CITY OF WICHITA, Kansas, a Municipal Corporation, Appellant, and Layne Western Company.
• Court: Kansas Supreme Court

Page 578

374 P.2d 578

190 Kan. 317

Don WILLIAMS, Appellee. v. The CITY OF WICHITA, Kansas, a Municipal Corporation,

Appellant, and Layne Western Company.

No. 42312.

Supreme Court of Kansas.

Sept. 17, 1962.

Rehearing Denied Oct. 19, 1962.

Syllabus by the Court.

The Act (G.S.1949, 82a-701 et seq., as amended) to conserve, protect, control and regulate the use, development and appropriation of water for beneficial and public purposes, and to prevent waste and unreasonable use of the water of the state, is examined, and as more fully set forth in the opinion, it is held: Not to violate the due process clause of the Fourteenth Amendment to the constitution of the United States or any provision of the constitution of Kansas because it defines existing common law water uses as of the time of its passage as being 'vested rights' in such water users and in protecting those rights from impairment, or as taking the unused ground water underlying an owner's land and requiring that the unused portion be made subject to the doctrine of appropriation for beneficial use, or as providing for the diversion of such water from its source to place of use on nonoverlying lands, or as requiring such owner to apply and obtain the approval of the chief engineer of the Division of Water Resources for the use of ground water underlying his land in order to preserve his right to divert and apply such water to beneficial use, or as not requiring that the unused ground water underlying such owner's land be acquired by eminent domain and payment of just compensation.

Robt. B. Morton, Wichita, argued the cause, and Fred W. Aley, Wichita, and J. Rodney Stone, Newton, were with him on the briefs for appellant, City of Wichita.

Kenneth G. Speir, Newton, argued the cause, and Vernon A. Stroberg, Herbert H. Sizemore and Richard F. Hrdlicka, Newton, were with him on the briefs for appellee.

FATZER, Justice.

This action was commenced January 16, 1958, and was before this court as Williams v. City of Wichita, 184 Kan. 53, 334 P.2d 353. No extended review of that opinion is necessary, and its place in the chronicle of events will appear in the following statement of the nature, facts and history of the action.

The action was brought for an injunction to prevent the city of Wichita from drilling and pumping a water well in the Wichita well- field area, Harvey County, Kansas. The issue was subsequently enlarged to include a total of ten municipal water-supply wells. The case was tried by the district court and it found 'each and all of the issues of fact and law in favor of the plaintiff and against the defendant, the City of Wichita.' Judgment was rendered that the 1945 Water Appropriation Act of Kansas (G.S.1949, 82a-701 et seq., as amended), hereafter referred to as the Act, was unconstitutional and that the city be permanently enjoined from pumping its water wells, but in the event it appealed to the supreme court, the injunction should be suspended until the appeal was determined on its merits. The defendant, hereafter referred to as Wichita, timely appealed following the overruling of its motion for a new trial.

The petition alleged the plaintiff is the owner of land in Harvey County 'in the vicinity of' a municipal water well then being drilled by Wichita through Layne Western Company, a drilling contractor (although named as a defendant the latter did not appear in the proceedings below and is not a party to this appeal). It later developed from amended pleadings and from the evidence that well No. 47, the well initially singled out, was approximately one and a half miles from plaintiff's 80-acre tract of land, and was one of a group of ten wells being drilled by Wichita. The petition further alleged that Wichita, contending the Act was constitutional and valid, filed an application with the chief engineer of the Division of Water Resources of the State Board of Agriculture for an appropriator's permit to beneficially use the water from the ten wells in question. During oral argument counsel for plaintiff stated that since Wichita's application was prior in time, and if the Act were found to be valid, the chief engineer had no alternative but to grant the application, and Wichita should prevail.

In support of his claim for injunctive relief, plaintiff alleged that the pumping of the wells would divert subterranean water from under his land resulting in his irreparable injury, and that he had no remedy at law by which the damage could be adequately recovered. He further alleged that the Act was unconstitutional and invalid in that it violated Sections 1, 18 and 20 of the Bill of Rights and Art. 2, Sec. 16 of the Constitution of Kansas, and that it violated the Ninth and Fourteenth Amendments and Sec. 10 of Art. 1 of the Constitution of the United States, as hereafter more specifically noted. The prayer was that the defendant be permanently enjoined from drilling or completing the well or any other wells until Wichita acquired a lawful and valid right to drill said wells and divert waters from under the plaintiff's land and other land in the vicinity of the proposed well or wells.

Shortly after the petition was filed, Wichita, appearing specially, filed a motion to quash the summons, and later, as a part of its answer, challenged the jurisdiction of the court and demurred to the petition. Those defenses were denied, and Wichita has specified them as error. With respect to the merits, Wichita's answer was a general denial.

Wichita advances eighteen specifications of error; however, in oral argument counsel stated a willingness to abandon all specifications of error except those asserting that the district court erred in holding the Act unconstitutional and in granting judgment on the merits in favor of plaintiff. Such narrowing of the scope of the appeal is in keeping with the statement of plaintiff's counsel that the constitutionality of the Act is actually the single decisive issue of the case.

This court takes judicial notice of the many years of protracted litigation that has taken place in state and federal courts over Wichita's municipal well operations in the Equus Beds in Harvey County and is of the opinion that a ruling here on the constitutionality of the Act will have a settling effect on the general controversy which has too long kept ground water users throughout the state in uncertainty and confusion. The need of stability in the water laws of Kansas cannot be overstressed.

The position taken by Wichita is a withdrawal of questions concerning the validity of the service of summons and the amenability of a city to a suit of this nature in a county other than that where the defendant city is situated. Also, it makes it unnecessary to pass on the interesting question of whether a discussion which occurred in chambers between Wichita's counsel and the district judge constituted a general appearance, when the subject of the discussion was a temporary injunction that never became operative because of plaintiff's failure to post a statutory injunction bond as provided in G.S.1949, 60-1110 and as ordered by this court (Williams v. City of Wichita, supra).

Before turning to the merits, a preliminary matter requires attention. The plaintiff filed a motion to dismiss or limit the scope of the appeal on the ground that the transcript of the evidence had not been filed with the clerk of the district court as required by G.S.1949, 60-3311. The parties conceded that the plaintiff obtained a copy of the transcript from the district court reporter at the same time it was furnished Wichita. Also, that the transcript was filed below prior to the hearing of the appeal and plaintiff's counsel stated during oral argument that no actual prejudice resulted. Under those circumstances, the motion is denied (Hanson v. Kramer, 131 Kan. 491, 292 P. 788).

With the issues joined, the parties stipulated that the first question to be decided was one of law, that is, the constitutionality and validity of the Act. Respective statements of the parties were filed and arguments were made following which the district court held that the Act was unconstitutional and invalid for the reasons and upon the grounds alleged by plaintiff, and that Wichita had no rights thereunder. The cause then proceeded to trial by the court upon the pleadings for injunctive relief.

In his opening statement the plaintiff enlarged the issues. Although no substantial change in plaintiff's theory of the case was advanced in his supplemental petition and in his opening statement, he asserted that because of the pumping of the Wichita wells, he has sustained damages, both from the loss of productivity and diminution in the land value itself; however, that an action for the recovery of those damages was not adequate because of 'the non-claim statute as it affects cities; that it would require a multiplicity of claims and litigation not only in the past, present, but for all time in the future as long as the City (Wichita) would continue its operations; that by reason thereof an action for damages is not adequate and that an injunction therefor is the only proper and appropriate remedy.' $The water source involved in this action is the Equus Beds, or more correctly described as pleistocene deposits. These beds are an underground water reservoir composed of extremely permeable sand, gravel, clay and silt, with a storage co-efficient of twenty percent, that is, a cubic foot of material contains one-fifth cubic foot of water. The beds are located primarily in the McPherson channel of the ancestral Smoky Hill River. They were formed when that channel was gouged out by water in the early stages of the glacial period, and during intervening glacial and interglacial periods it filled up with the soil mixture of which the beds are presently comprised. Generally speaking, they are bounded by Hutchinson on the west, Newton on the east, Wichita on the south, and Lindsborg on the...