Kaw Valley Drainage District v. Missouri Pacific Railroad

Citations

• 108 Kan. 314
• 195 P. 983
• 1921 Kan. LEXIS 38

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Drainage District — Contract to Build Riprap Work for Benefit of Railroad — Expense to be Borne by Drainage District — Right of Company Completing Work to Recover Cost Thereof. In an action pending between the Kaw Valley Drainage District and two railroad companies, a consent judgment was entered giving the drainage district the right of way over the private property of the railroad companies and providing that the drainage district would pay the cost, not to exceed $4,000 expended in the construction of necessary riprap protection to the railroad bed and tracks. The court reserved jurisdiction of the action and parties to make any orders necessary to carry out the judgment. One of the two railroad companies performed the work and upon refusal of the drainage district to pay brought supplemental proceedings to compel payment. The court found that the railroad company had performed the work and had expended a sum in excess of $4,000 and was entitled to judgment for that amount and interest. No question having been raised in the court below as to the sole right of the one railroad company to perform the work and recover for the cost thereof, it is held too late for the drainage district to raise the question here.</p> <p>2. Same — Character of Stone Used in Riprap Work — Waiver—Estoppel. Instead of one-man riprap, much heavier stone was used in a considerable portion of the revetment work, which was more substantial and better construction and cost less than if one-man riprap had been used. Held, that as the work was being done for the benefit of the railroad company, the stipulation as to the character of the stone to be used might be waived without the consent of the drainage district, and further held, that there was a substantial compliance with the terms of the contract, and held, also, that appellant was estopped by its conduct to contend otherwise.</p> <p>3. Same — Counterclaim Properly Disallowed. Evidence with respect to a