Dugdale v. McCoy

77 P. 1134, 69 Kan. 867, 1904 Kan. LEXIS 372

Opinion

Per Curiam:

This case involves the granting of an injunction to restrain a road overseer from maintaining an obstruction to the flow of water through a culvert across a public highway. The findings of fact are insufficient to establish the existence of a natural watercourse across the highway at the place of obstruction. (Gibbs v. Williams, 25 Kan. 214, 37 Am. Rep. 241; K. C. & E. Rld. Co. v. Riley, 33 id. 374, 6 Pac. 581; C. K. & W. Rld. Co. v. Morrow, 42 id. 339, 22 Pac. 413; C. K. & N. Rly. Co. v. Steck, 51 id. 737, 33 Pac. 601; Singleton v. A. T. & S. F. Rly. Co., 67 id. 284, 72 Pac. 786.) Therefore, the case must be treated as one in which an injunction is sought to control the repair of a road by a road-district overseer.

The law relating to the authority and power of road overseers was fully discussed by Chief Justice Johnston in the case of Shanks v. Pearson, 66 Kan. 168, 71 Pac. 252. The questions involved in that case are identical with those arising upon the record under consideration.

The district court having found, though in a somewhat dubious way, the existence of a circumstance authorizing it to interfere, its judgment is affirmed.