68 P. 1093 | Kan. | 1902
The opinion of the court was delivered by
In 1897 this-case was before us, and. it was then determined that the city was answerable to residents for damages resulting from the precipita
A number of errors are assigned, which will be briefly noticed. When the cause 'was remanded for a second trial the petition was amended by striking out the averment that Nina King was the owner of the property injured. In the original petition it was alleged that James King and Nina King were the owners of the property, and, as the amendment was made after the statutory period for bringing such an action had expired, it is argued that the amendment introduced a new cause of action which was then barred. ' The amendment did not introduce a different cause of action, and it was, in fact, immaterial. The fact that the Kings sued jointly does not require that there shall be a joint recovery or none at all. The common-law rule was that the several plaintiffs in an action must all recover jointly or all
The cause of action arose in favor of the plaintiff below when the overflow occurred and» the injury was inflicted. The complaint made was not against the plan of the sewers, but it was rather that they were not properly completed by placing flood-gates over the mouths of the same. The sewers were not built upon the plaintiff’s property; they did not constitute a trespass upon his property, and his rights were not invaded until the water was backed through the sewers and precipitated upon his property. Not until that time did a cause of action accrue in his favor, and, hence, the right of action was not barred when the proceeding was begun. (Union Trust Company v. Cuppy, 26 Kan. 754.)
It is contended that ordinary high water would not have occasioned injury to King’s property, and that the city, in constructing the sewers was not required to anticipate or guard against an extraordinary freshet. It is true that the flood of 1892 may be said to have been an unusual one, but, although unusual, it was such as had occasionally occurred, and which the city
The testimony with reference to defects, other than the absence of flood-gates, was properly excluded from the jury, as that was the only negligence alleged, and the findings of fact made show conclusively that the neglect to provide the flood-gates was the sole ground upon which the recovery was had.
The complaint that additional findings, requested by the city, were not made by the court is not good. The findings were not requested until after the court had announced its findings, overruled the motion for a new trial, and entered final judgment. The request
The evidence is sufficient to sustain the findings and the judgment of the court, and none of the grounds of error assigned justifies a reversal. The judgment is affirmed.