Garrett v. Beers

Citations

• 97 Kan. 255
• 155 P. 2
• 1916 Kan. LEXIS 277

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Change op Watercourse — Damages—Proper Party Plaintiff. Where a plaintiff has acquired a town lot and has entered into possession under a contract of purchase, he is the owner of it so far as concerns his right to maintain an action for damages to the property.</p> <p>2. Extraordinary Floods — Damages—“Act of God.” An “act of God” as known in the law is an irresistible superhuman cause, such as no reasonable human foresight, prudence, diligence and care can anticipate and prevent.</p> <p>3. Same — Heavy and Protracted Rains — Not within Definition of “Act of God.” A flood caused by a heavy and protracted rain no greater than had fallen “many a time before1’ within the duration of a man’s experience is not such “an act of God” as will excuse one who changes the natural course of a stream into a new channel which is inadequate to carry off its waters without damage to neighboring property.</p> <p>4. Title — In Name of Wife — Husband Liable for Changing Watercourse. Although the title to property may be vested in a wife, her husband may subject himself to liability as its owner by acts of dominion and control over it.</p> <p>5. Same — Acts Rendering Husband Liable for Changing Watercourse. Where a husband’s business firm contributed a large sum of money towards the purchase of a tract of land and the husband joined in platting it as a city addition, paid the taxes from year to year, changed the course of a stream which flowed through it, advertised lots in the addition, sold such lots and received payments therefor and gave receipts in his own name, he may be liable as owner for the negligent manner of changing the stream and its consequences although the title to the property was taken and held in the name of his wife.</p> <p>6. Changing Watercourse — Liability for Damages. Where for his own purposes the owner of land changes the course of a stream, he must use due care to provide the stream with a new channel of sufficient capacity