95 Kan. 315 | Kan. | 1915
The opinion of the court was delivered by
This is a suit by which the plaintiff sought to enjoin the erection of an obstruction consisting of a dam in a stream which the petition alleged is a
In a former opinion (Harder v. Power Co., 93 Kan. 177), the action was dismissed on the ground that the motion for a new trial was filed more than three days after judgment. Our attention having been called to the fact that there was a mistake in the printed record and that the motion for a new trial was filed in due time, a rehearing was granted.
The first error assigned is the refusal to strike from the answer of the Yates Center Water, Light & Power Company certain allegations and exhibits; second, the admission of incompetent and immaterial testimony. Both claims of error are based on the same contention. The motion to strike was leveled at portions of the answer alleging that the water company had entered into a contract with the city of Yates Center to provide water for the use of the city, and the evidence objected to was offered for the purpose of proving the same allegations. The trial was by the court, and there was no error in the refusal to strike the statements
The main contention is that the court erred in refusing an injunction. We can agree with plaintiff that the great weight of the evidence offered by both sides seems to establish that Owl creek is a natural watercourse, notwithstanding there are times when the water does not run. The evidence shows that the stream heads about a mile above plaintiff’s lands and drains about five sections; that it is fed by springs, and when the water is low there are standing pools; that it abounds in fish, has a well-defined channel with high banks on one side and with heavy trees growing along the banks. But if it were conceded that it is a natural watercourse it would not necessarily follow that plaintiff was entitled to the relief sought. When the cause came on for trial the suit had become one for a mandatory injunction to require defendants to remove the obstruction, which means to remove the dam and restore the stream to its natural state. While it is true that the evidence of both plaintiff and defendants shows that the dam at times backs the water upon a few acres of plaintiff’s pasture land and that it diverts the natural flow of the stream from his lands below the dam, still it can not be said that it was error to refuse to order the dam destroyed. The granting of an injunction in a case of this kind rests in the sound judicial discretion of the court. The j udgment is a general one against the plaintiff. There are no findings of fact from which we may ascertain upon what ground the court denied the injunction. So far as the record discloses, no findings were requested. If there were findings of fact plaintiff might be in a much better position to urge error in the refusal of the court to grant him relief. In considering
At the close of the evidence, at the request of both plaintiff and defendants, the judge of the district court visited the premises, “viewed the landscape o’er,” and came to the conclusion that the plaintiff was not entitled to the relief sought.
The defendants offered some evidence in support of their contention that Owl creek is not a natural watercourse ; that the dam impounds surface water, and that they use less than one per cent of the flood waters; that about ninety-nine per cent of the water falling upon the watershed above the dam finds its way either by the spillway at the end of the dam or through seepage to the lands of the plaintiff lying below the dam, and that the dam is provided with a drainage pipe through which the water is at times allowed to escape when defendants have more than they need for their own purposes. Their evidence also is to the effect that only a very small portion of the plaintiff’s lands above the dam is ever flooded by water backing up in times of flood. There was some testimony to the effect that the amount of the plaintiff’s lands thus submerged would be less than an acre. Doubtless the court concluded that plaintiff had a remedy in an action to recover whatever damages he sustains by the backing up of water on his land as well as any damages he may have suffered by reason of the erection of the dam.
Whether a mandatory injunction requiring the restoration of the property to its former condition shall be granted usually depends upon a consideration of the equities between the parties. (Gilmore v. Salt Co.,
“In all case's the court takes into consideration the relative inconvenience to be caused to the parties, and will refuse an injunction if it appears inequitable to issue it.” (22 Cyc. 783.) -
An injunction will not be issued even to enforce a strictly legal right where equity and good conscience does not require it. (Railway Co. v. Meyer, 62 Kan. 696, 64 Pac. 597.) In the case last cited an injunction was sought to restrain the obstruction of a natural watercourse. It was conceded that about one and a half acres of plaintiff’s land would be affected by -sVater made higher by the obstruction. The opinion, after stating that this would happen “only at rare intervals and for a short period of time,” used this, language:
“It is impossible in the nature of things that much, if any, damage could result to the defendant in error, and, if damages should so result, they are easily measured by a money consideration, and in no sense can be great or irreparable,” (citing Blaine v. Brady, 64 Md. 377, 1 Atl. 609). (p. 700.)
The plaintiff has failed to show error in the proceedings in the court below, and the judgment is affirmed.