105 Kan. 603 | Kan. | 1919
The opinion of the court was delivered by
This is an appeal from a judgment refusing an injunction against the maintenance of a culvert on a highway built across a ravine or waterway, in which plaintiff alleged that there was an insufficient opening for the passage of water. • Plaintiff owns a farm on this waterway which drains an area of about five hundred acres, and she alleges that when freshets or heavy rains occur the culvert holds the water back on her garden, thus causing injury and loss. She made a claim for damages, which appears to have been abandoned, and also insists the culvert should be abated. The trial
It is insisted that some of the findings are not supported by the testimony, and also that under the findings the plaintiff was entitled to an abatement of the culvert.
It is true, as plaintiff contends, that an insufficient culvert which throws the water back upon the land of an abutting owner, substantially damaging him, constitutes a nuisance which may be abated by judicial action. (Murphy v. Fairmount Township, 89 Kan. 760, 133 Pac. 169.) To be entitled to an injunction it was necessary for the plaintiff to establish that the culvert caused substantial injury to her property. (Water Supply Co. v. City of Potwin, 43 Kan. 404, 23 Pac. 578.) It has been held that whether a structure or a use- is unreasonable, and the injury complained of is serious or substantial, is a question for the determination of the trial court, and if the injury, although technically wrong, is only slight and trivial, the plaintiff is ordinarily not entitled to injunctive relief. (Phillips v. Brick Co., 72 Kan. 643, 82 Pac. 787. See, also, Fogarty v. Pressed Brick Co., 50 Kan. 478, 31 Pac. 1052; Helms v. Oil Co., 102 Kan. 164, 169 Pac. 208.)
There is evidence tending to -show that the overflow of plaintiff’s garden did not result from the construction of the culvert across the ravine, and that the ravine was flooded in freshets before any bridge or culvert was built, the same as it has been since they were built. The flow of water it appears was obstructed to a great extent by the conformation of the land along the ravine and by the trees and shrubs growing in
We cannot say that the findings and judgment of the court are without support, nor that the plaintiff suffered substantial injury from the maintenance of the culvert. In announcing his conclusions and judgment, the trial court remarked that upon the estimate of the county engineer it would be advisable that in the building of culverts in the future the openings should be made somewhat larger, and that it would have been better to have had an opening in the culvert in question of four feet by six feet, instead of four feet in diameter, in order that the surface water which accumulated in freshets might more quickly escape. The advice so volunteered by the trial court was general in its character and, although not strictly within his functions, did not weaken his conclusion and judgment that the plaintiff had not suffered material injury, and was therefore not entitled to maintain injunction.
The judgment is affirmed.