Williamson v. City of Hays, 87,771

• Decision Date: 07 March 2003
• Docket Number: No. 87,771,87,771
• Citation: 64 P.3d 364,275 Kan. 300
• Parties: THOMAS L. WILLIAMSON and WYNEMA D. WILLIAMSON, husband and wife; TERRY L. WILLIAMSON and DEBI J. WALKER, a/k/a DEBI J. WALKER WILLIAMSON, husband and wife, Appellants, v. CITY OF HAYS, KANSAS, and WESTERN PLAINS SERVICE CORPORATION, Appellees.
• Court: Kansas Supreme Court

275 Kan. 300

64 P.3d 364

THOMAS L. WILLIAMSON and WYNEMA D. WILLIAMSON, husband and wife; TERRY L. WILLIAMSON and DEBI J. WALKER, a/k/a DEBI J. WALKER WILLIAMSON, husband and wife, Appellants, v. CITY OF HAYS, KANSAS, and WESTERN PLAINS SERVICE CORPORATION, Appellees.

No. 87,771

Supreme Court of Kansas

Opinion filed March 7, 2003.

John C. Herman, of Hays, argued the cause and was on the brief for appellants. Dennis L. Bieker, of Dreiling, Bieker & Hoffman, LLP, of Hays, argued the cause and was on the brief for appellee Western Plains Service Corporation.

James M. McVay, of Watkins, Calcara, Rondeau, Friedeman, Bleeker, Glendenning & McVay, Chtd., of Great Bend, argued the cause and was on the brief for appellee City of Hays.

The opinion of the court was delivered by

DAVIS, J.:

Thomas Williamson, Wynema Williamson, Terry Williamson, and Debi Walker Williamson brought suit against the City of Hays (City) and Western Plains Service Corporation (Western) for trespass, negligence, and injunctive relief based upon the collection, accumulation, and flow of water and other materials through a storm sewer drainage system over their property. The district court granted summary judgment for the City and Western. The Williamsons timely appeal. We affirm.

Thomas and Wynema Williamson are the owners of real estate which Terry and Debi Williamson are purchasing under a written contract. The Williamsons' property lies just outside the city limits.

Western owned a tract of platted and subdivided property inside the city limits known as the 41st Street Plaza First, Second, and Third Additions. Some lots within the subdivisions have been sold to individuals who are not parties to the present action. The western edge of Western's Second and Third Additions, in addition to some of Westerns' unplatted and unsubdivided property, borders the eastern edge of the Williamsons' property. Certain property within Western's First, Second, and Third Additions was dedicated to the City for public streets and storm sewers.

The City filed an eminent domain action against the Williamsons seeking to condemn some of their property for a temporary and permanent easement. The purpose of the easement was for the installation, construction, maintenance, and operation of a storm sewer for water drainage to serve the 41st Street Plaza First, Second, and Third Additions within the City. In their answer to the eminent domain action, the Williamsons attempted to advance a claim of trespass against the City. Appraisers were appointed who recommended total compensation of $540 to the Williamsons for both the temporary and permanent easements. The journal entry awarded $350 to Thomas and Wynema Williamson and $190 to Terry and Debi Williamson for the easements taken. The district court acknowledged that the Williamsons intended to proceed in a separate action "on matters which are not properly before the Court in this condemnation action" including their claim of trespass against the City.

The Williamsons brought this present action against the City and Western claiming that the defendants were liable for the damage to their property caused by the drainage of surface water onto their property. Their action is based upon their claims of trespass and negligence. They also asked the district court to enjoin Western and the City from collecting and depositing water, residue, and pollutants on their property.

Both defendants answered, denying any trespass or negligence. The City, by way of affirmative defense, alleged among other defenses that the plaintiffs' claims were barred by the Kansas Tort Claims Act (KTCA). See K.S.A. 2002 Supp. 75-6104(m). Upon completion of discovery, both Western and the City filed motions for summary judgment. After a full hearing, the district court granted both defendants summary judgment.

Decision of the district court

The district court relied upon the following uncontroverted facts in granting the defendants summary judgment:

"3. The subdivisions [Western's] have been properly platted and developed as residential property, including the installation and construction of public streets, sanitary/sewer and water mains. The installation of these public structures was done under generally recognized and prevailing standards in existence at the time.

"4. Prior to construction of these public works and the development of the subdivisions, the natural drainage of water from the land owned by Western Plains Service Corporation (at least that part which is in controversy), was to the west onto Plaintiffs' property.

"5. Subsequent to the development of the subdivisions, the drainage in question continued to the west onto Plaintiffs' land.

"6. Plaintiffs contend that the westerly flow of rain water from the subdivision[s] has been concentrated into a storm sewer system which discharges onto Plaintiffs property at a higher velocity allegedly causing `damage, erosion, a nuisance, pollution, and a hazard.' "7. Discovery is closed, and Plaintiffs have not produced any scientific or quantifiable evidence either before or after construction of the subdivisions relating to quantity, velocity and quality of water discharged onto Plaintiffs' property. There is anecdotal evidence from Plaintiffs and Defendants as to flooding before the subdivisions were developed and water conditions after development.

"8. Plaintiffs contend that the concentrated discharge of water constitutes a trespass, and further contend that the storm water collection facilities were negligently designed and constructed, thereby damaging Plaintiffs' property.

"9 Although it is clear storm water from the subdivisions flows onto Plaintiffs' property, as it did prior to development, there is no evidence of negligent design or construction. Indeed, the only evidence in that regard are the affidavits of city officials which state that the `installation/construction and the plan and design of the public streets, public sanitary/sewer and public water mains were all in conformity with generally recognized and prevailing standards in existence at that time.'"

Based upon the above findings, the district court entered the following conclusions of law:

"`Under common law, surface water was a common enemy of land owners. The landowner was free to elect the method of control. The enactment of the statutory forerunners to K.S.A. 24-105 and 24-106 modified the common law. A land owner's right to deal with surface water in any manner was restricted.' DeWerff v. Schartz, 12 Kan. App. 2d 553 (1988), and Clawson v. Garrison, 3 Kan. App. 2d 188 (1979).

"K.S.A. 24-105 provides in pertinent part: `It shall be unlawful for a landowner or proprietor to construct or maintain a dam or levy which has the effect of obstructing or collecting and discharging with increased force and volume the flow of surface water to the damage of the adjacent owner or proprietor . . . Provided, That the provisions of this section shall apply only to lands used for agricultural purposes and highways lying wholly outside the limits of any incorporated city. . . .'

"K.S.A. 24-105 does not modify the common law rule within incorporated limits of a city. The rule in Kansas now is `(T)hat as to agricultural lands outside the incorporated limits of a city, upper proprietors may not divert their surface waters by artificial means onto the means of lower proprietors nor accelerate by means of ditches or increase the drainage of their lands to the injury of lower owners.' Clawson v. Garrison, 3 Kan. App. 2d at 203.

"As to surface waters within incorporated cities, the common law rule is still in force. That is, the `landowner has the right to use and improve his own land for the purpose for which similar land is ordinarily used; and may build upon it, or raise or lower its surface, even though the effect may be to .. . shed surface water over land upon which it would not otherwise go.' Liston v. Scott, 108 Kan. 180 (1921).

"`A municipality is not liable to a property owner for the increased flow of surface water over or onto his property, arising wholly from changes in the character of the surface produced by the opening of streets, building of houses, and the like, in the ordinary and regular course of the expansion of the municipality.' Baldwin v. City of Overland Park, 205 Kan. 1 (1970), Syl. 5.

"Plaintiffs' contention of trespass is not supported by the relevant case law and Kansas statutes cited above, and must therefore fail. There is no evidence of negligent design or construction of the storm water collection facilities, thus that contention fails as well. Finally, there is no evidence to support Plaintiffs' contention that the quality of water draining onto Plaintiffs' land has been adversely affected by the Defendants thereby causing damage to Plaintiffs.

"For the reasons cited above, the motions of the Defendants, City of Hays and Western Plains Service Corporation, for summary judgment are granted. Further it would appear to the Court that the City of Hays is entitled to exemption from liability under the Kansas Tort Claims Act, K.S.A. 75-6104(m)."

The plaintiffs appeal. Our jurisdiction is based on our transfer of this appeal from the Court of Appeals pursuant to K.S.A. 20-3018(c). Additional facts necessary to resolve the issues raised by the plaintiffs in this appeal are set forth below.

The plaintiffs contend that the district court erred in granting summary judgment for the following reasons: (1) The provisions of K.S.A. 24-105 apply; (2) even if the statute does not apply, the "common-enemy doctrine" does not relieve the defendants from liability; and (3) the City is not exempt from liability under the KTCA.

(1) K.S.A. 24-105

The district court found K.S.A. 24-105 inapplicable to Western's property because the property is located inside the city limits. The Williamsons argue that the City's ownership of the easement is outside of the city limits and, therefore, both the origin and the...