Marts v. Freeman

Citations

• 91 Kan. 106
• 136 P. 943
• 1913 Kan. LEXIS 344

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>Highway — Surface Water — Ditch Constructed by Road Overseer — Obstructed by a Landowner — Overflowing Another’s Land — Damages Recoverable. A public road extended east and west, crossing a valley through which a creek flowed. The road was low and subject to overflow from surface water from the north at a depression about half a mile west of the creek. Complaints were made to the township board of the condition of the road. M., whose land abuts upon the south side of the road at the depression, urged that a ditch should be constructed' from a culvert at that place to the creek. Upon a view of the premises the board believed that the proposed ditch would benefit the road, but doubted their power to construct .it. Thereupon, with M. and other people of the vicinity, they presented the matter to the county commissioners, who instructed the board to take the water off the road. The county attorney advised that the work should be done under the direction of the road overseer. The ditch was constructed accordingly, under the supervision of the overseer, who dug it so far as could be done with a road grader, and it was then finished by M. at his own expense, as he had agreed to do because of anticipated benefits to his own land. The ditch was a substantial improvement to the road and also of material benefit to M.’s land. It was kept open for ten years, when F., who owned land along the creek abutting on the south side of the road, obstructed it by a dam, causing the water to overflow M.’s land and injure his crops. At the time of the obstruction, the ditch, by action of the water had become so deep and wide that it cut into and materially injured F.’s land. It is held:</p> <p>(1) That the road overseer was vested with authority to construct drains in public highways. His discretion in exercising this authority could not be controlled by a court except in case of fraud or bad faith.</p> <p>(2) In exercising this authority the fact that the