117 Kan. 622 | Kan. | 1925
The opinion of the court was delivered by
This was an action by the city of Hutchinson to enjoin the defendants from erecting a machine shop over Cow creek, a stream which runs diagonally through the city of Hutchinson. Originally the stream took a zigzag course through the city, and in 1878, in order to straighten it and thus facilitate the flow of water and prevent overflows in times of flood, a right of way 150 feet wide was condemned which extended from the northwest to the southeast through the city. The old bed was abandoned and a new channel for the stream was cut in this right of way. The defendants
There can be no question but that the city obtained such interest in and control of the right of way as can be gained by a condemnation. The purpose of condemning and procuring land for a change of the channel of the stream is undoubtedly a public and a legal one. The validity of the ordinance under which the appropriation was made is not questioned. It is conceded to be a valid appropriation of the ground for the purpose of providing a suitable channel for the flow of water in the creek, and that no one has a right to obstruct the natural flow of the water which passes through
There is little evidence as to the effect of freshets or of flood.conditions on the stream or as to the necessity for the use of the entire right of way to carry off the flow of water coming from the watershed. Enough is admitted or shown, however, to warrant the injunction against the placing of foundations and caissons in the channel of the stream. The wall of defendants narrowed the course to 50 feet, and defendants concede that seven piers are designed to be built across the channel each of which is 30 inches in diameter. It was shown that there is ordinarily 30 inches of water in the stream, and the proposed building of defendants over the stream will only be 4 feet and 7 inches from the top of the water to the beams of the building. The extent of the watershed is a well known fact and the volume carried during freshets or heavy rains is necessarily great, and whatever may be the rights of the defendants in parts of the right of way not needed or used for the purposes for which the appropriation was made, defendants had no right to interfere with the use of the channel, no right to place the obstructions mentioned in the channel without the consent of the city. (K. C. Rly. Co. v. Allen, 22 Kan. 285.) These obstructions within the flowing limits of the creek necessarily would impede the flow and to an appreciable extent defeat the use and the rights obtained • by the city in the condemnation proceeding. The whole right of way 150 feet wide was condemned, and the presumption must be not only that the condemnation was legal but that in this proceeding it was determined that there was a necessity for an appropriation of land and also for the quantity of land taken. (Dillon v. Railroad Co., 67 Kan. 687, 74 Pac. 251.) All recognize that there is need for more land than is required for the channel itself. It is necessary that there shall be room for embankments and a roadway along the stream, so that the city may have access to the channel in order to maintain it and keep it in good condition. Again, the city authorities doubtless considered the future growth of the city, and were making provisions for the greater accumulations and flow of water that will result from an enlargement of
There is a further contention that the city should not prevail since other structures had been erected which encroached on the ground appropriated as much as would the proposed building of the defendants. The fact that officers may have been lax in protecting the rights of the city, or have failed to take steps to expel intruders, or that the city itself through its officers have used portions of the condemned ground for other purposes, does not relieve the present officers from performing their duties in this respect nor estop them from asserting the rights of the city. In matters relating to public welfare or any exercise of the police power a state or any of its municipal agencies is not estopped to assert or protect public rights. It is held that a state cannot estop itself even by grant or contract from the exercise of the police power. (Texas & N. O. R. R. Co. v. Miller, 221 U. S. 408; Denver & R. G. R. R. Co. v. Denver, 250 U. S. 241; The Sanitary Dist. v. United States, 45 Sup. Ct. Rep. 176.) Nor is there any basis for a contention that the city has abandoned the property condemned. Those who entered upon the property and occupied a part of it stand in about the same relation as if they had intruded upon and used portions of a public street. It is held that public property cannot be diverted from the use for which it was acquired, and that those who intrude upon and occupy public grounds are presumed to hold it subject to the paramount rights of the public. (Giffen v. City of Olathe, 44 Kan. 342, 24 Pac. 470; Wilson v. City of Neosho Falls, 93 Kan. 178, 144 Pac. 230.)
Under the facts the city was entitled to the injunction granted, and the judgment is therefore affirmed.