Kirkendall v. Hunt

4 Kan. 514 | Kan. | 1868

By the Court,

Kingman, C. J.

This was an application for an injunction to restrain the defendants, who were the defendants below, from raising their mill dam, thereby doing injury to the. plaintiff.

The facts set forth in the petition are these: The plaintiff is the owner, in fee, of certain described lands lying on both sides of Cottonwood creek, in Lyon county. The defendants are owners of another tract of land lying upon the same creek, below that of plaintiff, and have erected a milldam thereon, by means of which they have flowed, back the water of said creek upon the plaintiff’s land to the height of three feet, and made a ford of plaintiff’s, difficult and dangerous to cross; that said ford is necessary to the plaintiff in getting from one-half of his farm to another, and that defendants are about to raise their dam three feet higher, and thus make the crossing of the ford impossible, and doing great and. irreparable injury to plaintiff.

To the petition the defendant interposed a demurrer, which was sustained, and the case brought here to review the judgment on the demurrer.

It is not denied, on the part of the defendants, that the facts set up in the petition are sufficient of themselves to authorize the granting of an injunction, but they say that the law has provided the plaintiff with •another remedy, which takes the place of the injunction. This remedy is found in the “act to authorize the erection and maintenance of milldams and mills,” in the laws of 1867, p. 159.

.We are satisfied that the facts stated in the petition, and which are substantially stated above, are sufficient to entitle the plaintiff to the relief demanded. The injury -complained of is not a mere trespass; it goes to the permanent and very material injury of the plaintiff’s right to access to all parts of his property, and prevents his enjoyment of it as his interests may require, by obstructing his passage from one part to another of his premises.

The injury is likely to be perpetual, and may grow into a right by the lapse of time. It seems that this is a fit case for the interference by injunction. Story’s Eq., § 927; 3 Sumner, 189; 39 Barb., 312.

We are reasoning in the case as it comes to us, the demurrer admitting the statements in the petition as true, and so we consider them.

Hoes the law of 1867 take away the remedy? We think not. The object of the' law is to give mill owners, and those having mill sites, the power to obtain, by certain definite steps, the right to erect mill-dams and flow land ; and until they have taken such steps, they obtain no rights under the law. The legislature has not attempted to do what it could not do, that is, allow one man to have the right to obstruct another man’s use of his own premises, in the freest possible manner, without having first rendered him full compensation thetefor. This would be the law were it not so expressly provided, but the legislative mind clearly perceived this truth, for' they provided that the amount of damages found due by the commissioners should be first paid, and such payment “shall stop the parties receiving it from all further proceedings or claim in the premises.” (§ 9). It is such payment alone that stops proceedings, not the possibility that the mill owner may at some future time take steps, and pay such damages as may be assessed. Even after payment, the mill owner lias no right to proceed, if the owner of the land shall take an appeal, until such mill owner has given bond, with approved security, to pay such judgment as the court may render in the premises.

The law of 1867 gives no right to any person, save those intending to erect a milldam, or those having one already erected, nor does it profess to give any other person any remedy for injuries to his property. It provides the steps by which a milldam may be erected, and the lands of other parties flowed, but none of these steps can be initiated by the party injured.

His remedy , is left untarnished, and is to be found in other statutes. Those remedies are either by suit for damages, or by an order restraining the proposed injuries, as each case may demand, and, in some cases, both remedies may be resorted to with propriety. But neither of these remedies are provided for in this act. They existed before, and the fourteenth section of this act only prescribes a limitation as to the time within which an action for damages must be brought. It does not purport to give that right, but recognizes its previous existence.

The sixteenth section gives one year to those already having dams erected, in which to avail themselves of its provisions; but it does not give, nor was it in the power of the legislature to give any one the right to use another party’s land for one year, or one moment, without previously paying therefor.

If the dam was already erected, and flowed the water back so as to materially and permanently injure the land of another, the owner thereof was liable for damages for every day it so remained, and that liability would continue as long as the injury remained. Section 16 only points out the means whereby the owner may rightfully do what he was previously doing wrongfully, and it gives him one year to take those steps; until he has done so, the act is no protection to him.

If the defendants desired to raise this dam, the law pointed out how they might rightfully do so, and having taken those means, they would be a good and valid answer to such petition as is filed in this case. It is no answer to say they may 'do so in one year. They are under no obligation to do so, and at the expiration of the year, may abandon the dam, and leave the plaintiff to the dread uncertainties of a law suit to get his rights. The law is a liberal one, and probably wise in its provisions.

If we could find, in the language of the law, a justification for the interpretation claimed by the defendants, it would destroy the law, for it is beyond the power of the law to appropriate the property of one man to the use of another; but the law bears no such construction. It gives, in the sixteenth section, these defendants the power to do rightly what they are now doing wrongfully, and it gives them that power for one year only ; but until they exercise that power they get no rights under the law. The plaintiff says, “I want my pay now.” To this defendants reply, “We may pay you in a year, in a certain way, if it suits us ; we have that right under the,law.” The law is not open to any such charge. It is liberal, but it is not absurd.

The judgment' sustaining the demurrer is reversed,- and the cause sent back for further proceedings.

All the justices concurring.