Parker v. City of Atchison

58 Kan. 29 | Kan. | 1897

Johnston, J.

11 &wkey;ama?notp11' change channel. The foregoing findings of fact as to the character and effect of the barrier erected and proposed to be erected along the channel of the creek by the plaintiffs in error, must be accepted in this court. It is somewhat difficult to understand why a barrier so low and frail should imperil or injure substantial improvements like those of the City on the other side of the stream, but there is testimony in the record tending to support that finding, and, therefore, that injury will result, must be regarded as an established fact in this court. Ordinarily, there is but little water in the creek ; but in times of freshets and floods the usual channel which passes over the lots of the plaintiffs in error is insufficient to convey the water, and sometimes it overflows such portions of the lots as are outside of the channel. The plaintiffs in error had a right to confine the waters of the creek to the channel, and, to accomplish that, were entitled to build cribs or barriers along the south bank of the creek in order to protect their property from the overflow and waste. This must be done, however, in such a way as not to interfere with the rights of others. They cannot build and maintain structures which will change the channel of the stream, or project the water against and upon the property of another in such a way as will result in substantial injury to either an owner upon the opposite side of the stream, or those above or below. Some testimony was offered tending to show that the barrier in question projected the water in such direction and with such force as to injuriously affect, as well the piling and wall built to protect the alley on the north side of the channel, as an expensive stone culvert which had been constructed across Sixth Street. This being true, the City had cause for complaint, and the court was warranted in awarding an injunction to prevent the injury.

2. No complaint for 23 years, In their cross-petition and in argument, plaintiffs in error claim that the improvements made by the City on the alley north of their lots, and on the street east of them, prejudicially interfered with their rights. They also claim that the north branch of the creek, which formerly united with the creek below their lots, was, by the City, diverted from its natural channel, and its waters thrown into the creek above their lots so as to largely increase the volume of water and result in injury to them. Complaint is made that the court failed to properly consider these claims and to award the plaintiffs in error the relief to wrhich they were entitled. As to the action of the City in uniting the streams west of their property, no claim can justly be made. The channel of the . t i i i i t , i north brancli was changed and the union: of the streams effected more than thirty years ago, and long before the plaintiffs in error acquired the property. It appears that the streams were united in 1865 ; and since that time Atchison has grown to be a city, and costly structures have been erected and valuable improvements made -where the north branch used to flow. The plaintiffs in error became the owners of the lots in 1882,— about seventeen years after the change had been made; and it does not appear that they made any claim by reason of the change until their answer was filed in this action, in 1889. It was then too late to claim anything from the City on account of the change. The diversion at that early day was evidently deemed to be in the interest of the public ; but whatever may have been the purpose, and however much or little the increased flow of water in the creek may have affected the lots in question, that course was taken and that condition existed for more than fifteen years before the plaintiffs in error owned the property and for about twenty-five years before the present action was begun. Mistakes then made, if any, or infringements upon rights, if any, have been cured by the lapse of time and the conduct of the interested parties.

_ 3. Lnnd-owner tatoSen^ig™ wicii viaduct. The claim made on account of the viaduct, which was constructed at great expense along Sixth Street on the east side of the lots, is without 3 merit. It extends a few inches upon ¡0ts, but it appears to have been so constructed with the knowledge, acquiescence and consent of the owners. In its construction, it appears that provision was also made that the owners might use the viaduct as a partial support for buildings or other structures erected upon the lot. Assent and acquiescence, under such circumstances, and where large amounts of money have been expended in the erection of permanent improvements, preclude the plaintiffs in error from claiming exclusive possession, or from interfering with the rights then obtained by the City. The doctrine of equitable estoppel applies with great force in cases of this kind. Upon every principle of fair dealing, they were estopped, and, although there was no formal dedication of the land, the court rightly refused them any relief.

4. Action for naríaSed¿'UTO years. They also ask for damages on account of the improvement in the alley north of the lots, which was made at a point where the bank of the creek was sloping, and the action of the water and condition of the ground rendered the alley at that point useless as a highway. It was in the main portion of the City, and there were large business houses on the lots north of the alley. With a view to prevent the encroachment of the stream and at the same time make the alley available, piles were driven on the south side of the alley, and a fill was made of about sixteen feet above the body of the stream. This made the alley passable, and also afforded protection to the culvert through Sixth Street, the end of which was immediately belo.w the improvement, and both of which were erected in the years 1883 and 1884. In the ordinary stages of water, the fill made in the alley would have little effect on the flow, but in an extraordinary storm or flood, it would prevent the water from spreading out upon the sloping bank upon the north side; and in so much as the waterway is narrowed on that side, to that extent the water is thrown against the south bank, and in such cases probably some injury will result. The alley is a highway, and the City is clothed with ample authority to improve and make the same passable. Power is also given to the City to alter and change the channel of streams and water courses. Gen. Stat. 1889, ¶'555, subdiv. 31. In doing so, however, reasonable care should be exercised to avoid unnecessary injury to private property. It appears, therefore, that the improvement was authorized and cannot be said to be illegal. The fact that there is statutory authority for the same does not exempt the City from liability for injury to private property. In making the improvements it is not required to provide for extraordinary floods and storms, but must exercise reasonable care to guard against such conditions as are ordinarily incident to the creek. It would seem from the testimony that the mere improvement of the alley could not have operated as a very serious injury to Property of the plaintiffs in error; but assuming that it was injured to some extent, they were too late in claiming a recovery. As the improvement is permanent in its character, but one action could be maintained, in which all damages, present or prospective, would be recoverable. The action accrued in 1884, when the structure was completed; and, under the third subdivision of section 18 of the Civil Code, it was barred at the end of two years.

Some other matters are discussed by counsel, but, confining our inquiry to the relief asked for in the prayer of the cross-petition, we readily conclude that no error was committed by the court in denying such relief.

The judgment will be affirmed.