Foster v. City of Augusta

199 P.2d 779, 165 Kan. 684, 1948 Kan. LEXIS 363
CourtSupreme Court of Kansas
DecidedNovember 13, 1948
DocketNo. 36,915; No. 36,916; No. 36,917; No. 36,918; No. 36,919; No. 36,920; No. 36,921; No. 36,922
StatusPublished
Cited by11 cases

This text of 199 P.2d 779 (Foster v. City of Augusta) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Foster v. City of Augusta, 199 P.2d 779, 165 Kan. 684, 1948 Kan. LEXIS 363 (kan 1948).

Opinion

The opinion of the court was delivered by

Harvey, C. J.;

These eight actions were brought by individual owners of property situated in the flood valley of the Whitewater river against the city of Augusta, a city of the second class, with a population of about 4,000, to recover damages alleged to have resulted to their property by the city building and maintaining a levee to protect the city and its inhabitants from floods. The attached plat, Appendix "A,” shows the location of the city, the levee and the property of the respective plaintiffs alleged to have been damaged.

The city of Augusta is situated for the most part in the east half of sections 22 and 27, as shown on the plat, in an area which might be described as within a Y formed by the Walnut and Whitewater rivers. The source of the Walnut is some thirty or forty miles to the north and northeast of the city and it flows in a crooked course to the south and southwest, passing to the east and south of the city. The Whitewater river has its source about the same distance to the north and northwest of the city and flows southward in a crooked course to the southeast into the Walnut river, perhaps a half mile south of the city. It passes the city on the west. In times of heavy rains and high waters these rivers overflow their normal banks frequently, at irregular intervals, spreading out over the farm lands of the flood valleys of the rivers, including a substantial part of the city of Augusta.

[686]*686. Beginning shortly prior to June, 1936, the city of Augusta, proceeding under our statute (G. S. 1935, ch. 12, §§ 635 to 646), constructed a levee on the west, south and east sides of the city to protect the city and its inhabitants, and the public and private property therein, from the floodwaters of those rivers. The levee was about three miles in length, constructed mostly of earth, about fifty feet wide at the bottom, ten feet wide at the top, and in places as much as twelve or fourteen feet high. It began at the northwest corner of the city, extended southwest almost to the west line of the section, thence south, all on section 22 to near the south end of the city, thence around the south end and north to about the south line of section 22. None of the real estate or other property of any of the plaintiffs was acquired or taken possession of by the city.

The sections of the statute under which the city acted, as applicable here, may be summarized as follows (we use only the section numbers): By section 635 any city in or near which there is a nonnavigable natural watercourse, the overflow from which in event of high water is liable to cause injury to public or-private property within the city, may acquire, by eminent domain or purchase, within or without the city for a distance of five miles, the lands and easements necessary to construct levees and acquire the necessary outlets and cause all necessary work to be done to protect the city and public and private property therein from floods and damage by the overflow of the natural watercourse. By section 636 the project is initiated by resolution passed by the governing body of the city declaring it necessary, for the public good and convenience, that the property described in the resolution be -protected from overflows from the watercourse. It shall have a competent engineer to make the survey, plans and estimate of the cost, and to examine the property liable to be damaged by the overflow of the watercourse, and make a report in duplicate, one of which shall be sent to the public utilities commission. Section 637 requires the public utilities commission to refer the report to their engineer, who shall examine the same, and if necessary make a personal inspection and report his findings to the commission, which shall make a finding, approving or disapproving the report of the engineer, and certify the same to the city. Section 638 pertains to bids and contract for the work, which are not here involved. Section 639 requires the governing body of the city to appoint three disinterested householders of the city “to assess all damages to any and all property [687]*687that will be injured or damaged by reason of said improvement,” and in fixing the amount of the damages they may take into consideration benefits, if any. By section 640 the governing body of the city, after receiving the report of 'the appraisers,' shall fix a time and place for the hearing of all objections to the report and give notice thereof.. Section 641 pertains to the conduct of the hearing and the action of the governing body thereon. Section 642 reads: “That all objections to the report of said appraisers must be in-writing and filed with the city clerk of said city forty-eight hours prior to the time fixed for the hearing of the same.” Section 643 provides for an appeal by anyone who has filed objections and had, a hearing thereon, and feels aggrieved at the decision of the governing body of the city, to the district court by filing a prescribed bond with the city clerk, who shall then make and file a transcript of the hearing with the clerk of the district court. The court then has jurisdiction of the cause and shall hear all competent evidence as to benefits received and damages sustained for the improvement. “All objections that shall be filed shall be heard and determined by said court as one proceeding,” and upon the rendition of the judgment the clerk of the court shall certify the decision to the governing body of the city. ¡Section 644 authorizes the governing body to issue internal improvement bonds “to provide for the payment of the costs of said improvements and the damages occasioned by reason thereof, . . .” Section 645 pertains to special benefit assessments, and section 646 to bond limitations, neither of which is pertinent here.

Without stating details it may be said the record discloses the city proceeded in harmony with the statute as above outlined. Appraisers were appointed, as required by section 639, to assess damages by reason of the construction of the improvement. They reported, “That there will result damages in the amount of $250 to Lots 5 and 6, in Block 30, of the Original townsite of the city of Augusta, Kan. That there will not be other damage of a definite and ascertaining nature.” The city set a date for hearing and gave notice, as required by section 640, and within the time provided by section 642 four owners of real property filed written objections to the report of the appraisers together with their claims of damages. Ira T. Foster, as the owner of the land shown in the name of Ira M. Foster on the plat, filed his objections, which in short alleged that the construction of the levee would damage his property in the sum [688]*688of $14,000. M. S. Loomis filed his objections in which he alleged he was the owner of the land now shown on the plat in his name, and also that shown on the plat in the name of L. W. Loomis, and the east half of the northwest quarter of section 21, now shown on the plat in the name of M. L. Loomis. He alleged the land was of the value of $42,000, exclusive of mineral rights; that it was suitable and desirable for agricultural purposes and had potential value for suburban acreage and residential purposes, and that by the construction of the dike his land would suffer damages and be depreciated to the amount of $18,000. Catherine Carter filed her objections in which she alleged she was the owner of eighty acres shown on the plat in her name; that it was of the reasonable value of $12,000, exclusive of mineral rights, and that it would be damaged in the sum of $10,000 by the construction of the levee. Lawrence L.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Estate of Kirkpatrick v. City of Olathe
215 P.3d 561 (Supreme Court of Kansas, 2009)
Estate of Kirkpatrick v. City of Olathe
178 P.3d 667 (Court of Appeals of Kansas, 2008)
Deisher v. Kansas Department of Transportation
958 P.2d 656 (Supreme Court of Kansas, 1998)
Busch v. City of Augusta
674 P.2d 1054 (Court of Appeals of Kansas, 1983)
Ventures in Property I v. City of Wichita
594 P.2d 671 (Supreme Court of Kansas, 1979)
Sanders v. State Highway Commission
508 P.2d 981 (Supreme Court of Kansas, 1973)
Steck v. City of Wichita
295 P.2d 1068 (Supreme Court of Kansas, 1956)
Yoder v. City of Hutchinson
228 P.2d 918 (Supreme Court of Kansas, 1951)
Foster v. City of Augusta
223 P.2d 730 (Supreme Court of Kansas, 1950)

Cite This Page — Counsel Stack

Bluebook (online)
199 P.2d 779, 165 Kan. 684, 1948 Kan. LEXIS 363, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foster-v-city-of-augusta-kan-1948.