26 Kan. 492 | Kan. | 1881
The opinion of the court was delivered by
The city has filed a motion for rehearing in this case. The point made in the motion is this: At the close of the opinion filed, we stated that we considered the statute broad enough to cover the condemnation of water, and that if the city and Soden could not agree upon terms, condemnation proceedings could be had. Now counsel say that the record discloses that condemnation proceedings were in fact had, and ask, What more could the city do? The trouble with those proceedings is, that there was no condemnation of the water. The effect of such proceedings is, to pass no more title, no greater interest than an ordinary deed would pass. In this case the city both condemned the tract of land upon the banks of the Cottonwood, and received from the owner a voluntary deed. The condemnation proceedings gave it no more right or interest in the land than did the deed which it received. It is true that the land taken and bought extended to the middle of the channel, and to that extent constituted the city a riparian owner, but no riparian owner has a right to divert the flow of a stream. Bragunier, the former owner, may have owned the land bordering upon the mill-pond for years, but such ownership of that land gave him no right to drain the pond or divert the flow of the stream to the destruction or injury of Soden’s water power. The city succeeded to Bragunier’s rights, and nothing more; it could not take a drop of water from that pond above what Bragunier had a right to take; it could not reduce Soden’s water power a particle more than Bragunier could. If the city wishes to take water from that pond to the damage of Soden’s water power, and desires to take it by condemnation proceedings, the commissioners appointed must value the power so to be taken, and the damage done to Soden by so taking; then if he is dissatisfied with their award he can
The motion for a rehearing will be overruled.
