No. 19,698 | Kan. | Feb 12, 1916
The opinion of the court was delivered by
A. J. Freeman brought suit against the defendants asking for a mandatory injunction directing the defendants to remove a dike built by them in April, 1911, after chapter 175 of the Laws of 1911 took effect, which dike Freeman alleged was so placed as to interfere with the natural course of drainage down the valley from his land. The lands involved in the suit all lie between two streams — one on the
The answers of defendants Scherer and Theodore Marts alleged among other things that there had been a ditch along the roadside which had properly taken care of the drainage for many years, and until it was filled up in 1910 by Freeman, and that any damage he may'have suffered to his land was due to this' act. In response to this claim Freeman alleged that the ditch was unauthorized and that he had a right to close it. Marts alleged and insisted that the rights of Freeman with regard to this dike had been litigated and determined in a former suit, tried in 1912, and that the only injury sustained by him resulted from his fault. The case to which reference was made was between plaintiff and one of the defendants herein, and many of the facts and contentions in the present case were
The trial herein was before the court without a jury, and there was evidence which tended to show that the road mentioned was established in 1893; that in wet periods the surface water flowed from the north upon the road as well as upon the lands of the defendants on the south side of the road. To prevent injury to the road, and also to the land south of it, the public authorities and landowners jointly dug a ditch on the south side of the road from a slough, which was near the center of the valley, eastward about a half a mile to Chapman creek. It also appeared that plaintiff had recognized that the ditch was for the purpose of drainage and to carry water not only from the road, but also from the lands north of the road, by digging lateral ditches from his land to the ditch, and he had further applied to the township officers to put in a tile or drain across the road to carry the water from his farm to the ditch. In 1910 the plaintiff filled up the ditch and thereby caused injury to the land of Marts for which the latter asked a recovery of damages. In that action plaintiff denied liability, and insisted that the ditch was not dug for the benefit of the public ; that the embankment or dike south of the ditch unlawfully obstructed the natural flow of the water and that it had operated to injure him. He asked to enjoin Marts from maintaining the ditch and embankment. That action resulted in a judgment in favor of Marts for damages and the injunction for which Freeman had asked was denied. Upon an appeal the judgment of the district court was affirmed. (Marts v. Freeman, supra.) It was there held that the fact “that the improvements were urged by and resulted in benefits to a landowner did not impair the right of the constituted authorities, acting in good faith, to make it for the use and benefit of the public.” (Syl; ¶ 3.) And it was further held that “The fact that a watercourse so created is an artificial one affords no justification for obstructing it where it exists by lawful authority, although the obstruction causes the water to flow where it did before the ditch was opened.” (Syl. ¶ 4.)
It appears that in the spring of 1911 the ditch was deepened and the dike raised, and that this was done after the enactment of chapter 175 of the Laws of 1911,. which authorizes the
When the plaintiff made his opening statement the defendants moved for judgment in their favor on the pleadings and the opening statement, but the court reserved its rulings on these motions; and after the plaintiff .had introduced his testimony, the court on the demurrer of defendants, as well as on the motion for judgment on the opening statement, rendered judgment in favor of the defendants. The plaintiff insists that there was some evidence which tended to support the material allegations of his petition, and that under the rules applicable where the evidence is challenged by a demurrer the ruling of the court was erroneous. This was an equity case triable without a jüry, in which the issues of fact as well as of law were for the determination of the court. It differs little from a case which is finally submitted to the court upon the testimony of the plaintiff alone. However, taking the plaintiff’s testimony, uncontradicted as it was, and drawing all the inferences in favor of plaintiff where the testimony was open to more than one inference, the court, we think, was justified in holding that the plaintiff could not recover. A public highway existed upon which the ditch was made. That ditch had been constructed under public supervision and had served as an artificial channel to carry the water to the creek. It had been recognized and. used by the plaintiff as a means of draining his adjoining lands, and the embankment or dike appears to have been an incident of the making of the ditch and really a part of it.
It is urged by plaintiff that as the ditch and dike were rebuilt after the act of 1911 relating to drainage was in force, the rebuilding of the same constituted a violation of the provisions of that act as much as if the ditch and dike had been orignally constructed at that time. The act, among other things, prohibits the lower proprietor of land from constructing a dam or levee that will obstruct the flow of surface water onto his land to the damage of an. upper proprietor. The ditch in question, as we have seen, had been in use for a great many years and had become an established artificial channel that carried off the surface water. The work done upon it in 1911 did not change
“To establish their right to an injunction it was necessary for the plaintiffs to satisfy the court that there were reasonable grounds to fear*189 the recurrence of the new injury with -such frequency as seriously to affect the value of their lands, or that other considerations rendered their remedy at law inadequate.” (p. 300.)
(See, also, Haage v. Kansas City S. Ry. Co., 104 F. 391" court="None" date_filed="1900-11-05" href="https://app.midpage.ai/document/hagge-v-kansas-city-s-ry-co-8742099?utm_source=webapp" opinion_id="8742099">104 Fed. 391; 2 Farnham, Water & Water Rights, § 582a, and cases there cited.)
If damage should result to plaintiff from the maintenance of the dike it would appear that an action for damages would afford him an adequate remedy in which each of the parties would have an opportunity to have his rights determined by a jury. The ditch and dike appears to have served the purpose reasonably well until it was obstructed by the plaintiff himself. The only injury that can come to him from the maintenance of the dike is that it might hold the surface water upon his land. He practically invited this result when he filled up the ditch and prevented the flow of Water into the creek. One who asks for an injunction is governed by the usual equitable rules, and one of them is that “He who seeks equity must do equity.” If he has acted wrongfully and illegally in the matter he is hardly entitled to ask for equitable relief by injunction. He did act illegally and wrongfully when he closed the ditch and obstructed the passage of water through it. In a sense he invited and permitted the injury which he anticipates may result to him from the ditch and dike. “A party can not invite and encourage a wrong, and then ask a court of equity to protect him by an injunction from the consequences of that wrong.” (Stewart v. Comm’rs of Wyandotte Co., 45 Kan. 708" court="Kan." date_filed="1891-01-15" href="https://app.midpage.ai/document/stewart-v-board-of-commissioners-7888370?utm_source=webapp" opinion_id="7888370">45 Kan. 708, syl. ¶ 2, 26 Pac. 683; Downs v. Comm’rs of Wyandotte Co., 48 Kan. 640" court="Kan." date_filed="1892-01-15" href="https://app.midpage.ai/document/downs-v-board-of-county-commissioners-7888896?utm_source=webapp" opinion_id="7888896">48 Kan. 640, 29 Pac. 1077; 22 Cyc. 776.)
Some objections are made to the rulings of the court excluding testimony, but in view of the facts related in behalf of the plaintiff in the opening statement of the case and the testimony of the plaintiff himself, none of the objections appears to be material.
The judgment is affirmed.