Horn v. Seeger

207 P.2d 953, 167 Kan. 532, 1949 Kan. LEXIS 407
CourtSupreme Court of Kansas
DecidedJune 11, 1949
DocketNo. 37,629
StatusPublished
Cited by11 cases

This text of 207 P.2d 953 (Horn v. Seeger) 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
Horn v. Seeger, 207 P.2d 953, 167 Kan. 532, 1949 Kan. LEXIS 407 (kan 1949).

Opinion

The opinion of the court was delivered by

Parker, J.:

In this action plaintiffs seek a mandatory injunction to compel defendants to remove a dike or levee constructed on their own property, running in a southeasterly direction on the north side of a natural watercourse, and to fill up a ditch made in connection therewith.

Defendants defend with an answer asserting the dike, levee and the ditch are lawful, and in addition request a mandatory injunction against George Horn, one of the plaintiffs and an upper landowner, directing him to fill up an excavation made in the bank of such natural watercourse and requiring him to remove dirt placed in the bed thereof.

Neither plaintiffs nor defendants were entirely satisfied with the ¡judgment, presently to be detailed, and originally appeals were taken by all parties from portions deemed to be adverse to their respective interests which included factual issues and alleged trial errors none of which are longer in controversy because in their briefs, and on argument of the cause, counsel for all parties concede and rely on the findings of fact made by the trial court and now assert the sole issues involved depend upon whether, under such findings, the trial court’s general judgment and conclusions of law filed in connection therewith are erroneous.

On the date of the institution of the action there was attached to the petition a map or plat, used during the trial and found by the court to be fairly accurate, showing the land involved, its ownership and the dike in question, to which the trial court referred in its findings and on which it made certain pencil lines and notations. Without this plat, in condition as indicated, a proper understanding [534]*534of the findings or the involved factual situation would be extremely difficult. For that reason it is attached to this opinion as Appendix “A.” In passing, it should perhaps be stated, the defendants offered and the court received in evidence a photographic map which, while it supplements the plat to which we have referred, is not nearly as complete or informative and hence will not be set forth in this opinion.

Since the parties agree the findings of fact are so complete and tell the story of the lawsuit so well that a further factual statement is neither necessary nor practical, such findings, even though they are lengthy, together with the conclusions of law on which the judgment was rendered, will be set forth in their entirety. They read:

“1. It is agreed by all parties that the respective parties to this action own the various tracts of land as set forth in the pleadings herein, and the court so finds.
“2. Prior to the commencement of this action the sixty acres described as the SE % of NW% and of NE% of SW14 in Section 35 was owned by George Bushnell and Effie Bushnell, and is referred to herein as the Bushell property. It was also referred to in some of the testimony as the Poole property.
“3. Since the beginning of this action the Bushnell property has been purchased by plaintiff George Horn. The plaintiff George Horn had full knowledge of the acts of Bushnell pleaded by defendants.
“4. That the map or plat set out in plaintiffs’ petition between pages 3 and 4 thereof is a fairly accurate map of the land involved and of the dyke erected by the defendants. The pencil line and notations thereon have been made by the court.
“5. That for many years a natural watercourse ran through parts of Sections 35 and 36, Township 4 South, Range 19, in which sections the land involved in this action are located. Said watercourse is now, and for many years has been, known as Meyer Creek. Said creek commences several miles to the southwest of Section 35 and enters the west side of said section somewhere near the middle of said section. It enters the Bushnell property at a point on the west line of the N% of NE% of SW%, then flowed north and northeasterly to a point approximately one-half of the distance to the north line of the SE% of NW% of said section measured from the south line of said SE1^ of NW%. From thence it flowed east to a point about one hundred yards from the east line of said SE'% of NW14 and from thence south to a point about 250 feet north of the center line of said section, at which point there was a natural dam or tongue of land which will be hereinafter further referred to. This is the point where Bushnell made an excavation in 1944. Prior to the making of such excavation said Meyer Creek flowed south and westerly to a point approximately 150 yards north of the south line of said Bushnell property and then made a bend to the east to a point about 150 feet north of the southeast comer of said Bushnell tract, where it left the [535]*535Bushnell property and continued in an easterly and southeasterly direction across the corner of defendants’ property and continued through the respective tracts belonging to the plaintiffs, then making a bend to the northeast and emptying into the Solomon River. The court has drawn the course of said Meyer Creek in pencil on the map set out in plaintiffs’ petition and has marked same in pencil ‘Meyer Creek’. This is the course followed by said Meyer Creek prior to 1937 or 1938 when the course of said creek was altered somewhat by the acts of George Bushnell, and is approximately the course of said creek as shown by the photographic map introduced by defendants as an exhibit. Said creek never flowed at right angles and flowed in the general directions herein set out in the manner usually followed by creeks or natural watercourses, that is, generally along curved lines and with minor variations. That the flow of said creek was very slight at the point where it entered the Gingles property from the west and was farmed across at that point. The watercourse became more clearly defined on the Gingles property due to additional drainage from the south entering it on said property and was a watercourse of more definite banks when it left the Gingles property crossing the road and entering on the Green property.
“6. That in 1937 or 1938 George Bushnell caused said Meyer Creek to be filled in where it crossed his property. The plaintiff Charles A. Green assisted in his work but in so doing was acting for the said George Bushnell and his wife. At the time said work was commenced said creek was from three to eight feet deep, being deeper in some places than others, and from four to six feet in width and with fairly well-defined banks where it ran across the Bushnell tract. A grader and tractor were used in doing this work by parties hired by the Bushnells. The work done by Green was done with a plow. The banks were plowed into the center of said creek and said creek bed was widened out, leaving a depression twenty or thirty feet wide with no well-defined banks. Said land has been farmed across since said time and crops are now growing in what was formerly the bottom of said creek bed. Said creek bed gradually filled up by accretion and lack of use, and such condition existed prior to 1944 and exists at this time.
“7. In 1944 the said George Bushnell made an excavation in the east bank of Meyer Creek at a point mentioned in Finding No. 5 hereof. The court finds that the tongue of land or fill in which said George Bushnell made said excavation in 1944 was a natural tongue or fill, although previous man-made excavations and fills may have been made at the point where Bushnell made said excavation in 1944.

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Bluebook (online)
207 P.2d 953, 167 Kan. 532, 1949 Kan. LEXIS 407, Counsel Stack Legal Research, https://law.counselstack.com/opinion/horn-v-seeger-kan-1949.