69 P.2d 729 | Kan. | 1937
The opinion of the court was delivered by
This was an action for damages to crops of plaintiff growing on farm land in the valley of the Neosho river, alleged to have resulted from excessive flood waters wrongfully diverted to plaintiff’s land by fills and levees constructed in the valley by defendant. A jury trial resulted in a verdict and judgment for plaintiff for 1626.12. Defendant has appealed.
The amount of the judgment is not seriously questioned if plaintiff is entitled to recover. While raised by demurrer to plaintiff’s evidence, by instructions requested and by objections to instructions given, and various other requests or objections made in the course of the trial, the points argued by appellant may be grouped under two main contentions: (1) That the evidence is insufficient to sustain the verdict, and (2) that the trial court applied incorrect principles of law with respect to defendant’s liability.
The facts, which may be said not to be controverted, may be stated as follows: The Neosho river is one of the principal rivers of the state and drains a large area by the time it reaches the location in Labette county, where this controversy arose. There, normally,
Plaintiff’s action was for damages to his crops in 1935 by the floodwaters of that year, his claim being that because of the fill and levee constructed and maintained by defendant the water upon his land was higher than it would have been and stayed longer than it otherwise would have remained,' resulting in the damages he claimed. To support this there was evidence to the effect that the government river gauge at the nearest point on the river showed the waters to be higher by about half an inch at the time of the flood of 1927 than at the time of the flood of 1935, and the testimony was that the water on plaintiff’s land was thirteen inches higher in 1935 than it was in 1927. Testimony was given also by several witnesses who had resided in or near this valley at this point for many years that prior to the time that any of defendant’s improvements were made to its plant much of the overflow floodwaters of the river passed from the north to the south across the land later filled by defendant, and across Horseshoe lake, and continued south as a part of the floodwaters of the river, and that while water was sometimes on plaintiff’s land, it was never so deep, nor so destructive to crops, as since the fill and levee were put in by defendant. Maps, with contour lines showing elevations of various parts of the valley, were in evidence as well as the opinion of experts.
Turning now to appellant’s contention that the evidence was insufficient to sustain the verdict: Appellant argues this largely from the maps with contour lines showing elevations, and from some of the evidence of the expert witnesses. We have examined these maps, with all they show. They are too large and too much in detail to be reproduced satisfactorily here. The one made shortly before
With respect to the legal questions involved, the trial court followed the rulings of this court in Clements v. Phoenix Utility Co., 119 Kan. 190, 237 Pac. 1062. That case concerned overflow flood-waters of the Neosho river at the same place in the river and its obstruction or diversion by the same electric generating plant involved in this case. The defendant in that case was the previous owner of the plant now owned by defendant here. The difference between that case and this one is that in that case damage was claimed to crops on the other side of the river from land owned by the plaintiff here, and the obstruction alleged to have diverted water was the grade of the railroad maintained by defendant to service its plant. There the defendant argued, as it does here, that the overflow floodwaters of the river became, in legal contemplation, surface waters, and that anyone may obstruct against them without being liable in damages to his neighbor. That question was fully considered, and in harmony with previous decisions of this court- it was held:
“Water which overflows the banks of a river at the time of an ordinary freshet or overflow and then flows over the lowlands or valley with the general course of the current of the stream, returning to the stream or its outlet farther down its course, is deemed a part of the water of the stream.”
We find no material error in the record. The judgment of the court below is affirmed.