Orchard Place Land Co. v. Brady

The opinion of the court was delivered by HORTON, C. J.: The city of Kansas City, in grading Tenney avenue, filled up Splitlog creek, a natural water course. As a substitute for the water course or channel of the creek, the city constructed a 4-foot sewer or drain under the grading or embankment at Tenney avenue, and extended the same 50 feet on the lots of the Orchard Place Land Company. This sewer or drain was elevated from 7 to 10 feet above the bed of the channel of the creek. The Orchard Place Land Company graded up its lots and continued the city sewer or drain through its property, joining its sewer or drain to the city sewer. Both the sewers or drains were of the same size; one was the continuation of the other. In May, 1889, the sewer upon the property of the Orchard Place Land Company fell in and obstructed the flow of the [423] waters through the same. The special findings of the jury show that the Orchard Place Land Company’s obstruction of the sewer or drain caused the overflow, and also caused the water to remain on the premises of plaintiff below. In the opinion of the writer, both the city of Kansas City and the Orchard Place Land Company are jointly liable for the damages to plaintiff’s premises occasioned by the overflow of the waters of Splitlog creek, as the city changed or diverted a natural water course, and then constructed a sewer or drain as an artificial channel to carry off the water upon the private property of the Orchard Place Land Company, and that company, after consenting to such construction of the sewer upon its premises, negligently and improperly obstructed the flow of water through the same. (Trust Co. v. Cuppy, 26 Kas. 754; Bryant v. Carpet Co,, 131 Mass. 491.) But it is immaterial, in the disposition of this case, whether the overflow complained of and the injury resulting to the plaintiff’s premises were the result of the joint action of the city and the Orchard Place Land Company, or of the latter company only. If the Orchard Place Land Company is liable upon the evidence and the findings of fact, the judgment rendered against it may be affirmed, even if the judgment against the city, upon the findings of fact, ought to be reversed. All of the niembers of the court agree that, as the sewer or drain under the bank of Tenney avenue was extended upon the property of the Orchard Place Land Company with the consent of that company, and as that company joined to and continued the sewer or drain through its property, the company is liable for any damages resulting to the plaintiff below from negligently constructing or negligently permitting its own sewer or drain to be obstructed or out of repair, whereby large quantities of water formed against and above Tenney avenue, to the injury of plaintiff’s premises. (Kansas City v. Brady, 52 Kas. 297.) Many of the rulings of the trial court are criticised in the brief of the Orchard Place Land Company, but in view of the evidence and the special findings of the jury, the errors [424] alleged are not prejudicial. Upon the undisputed facts, plaintiff below is entitled to recover. Therefore the judgment of the district court will be affirmed. All the Justices concurring.