Rolens v. City of Hutchinson

Citations

• 83 Kan. 618
• 112 P. 129
• 1910 Kan. LEXIS 594

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>. 1. Easements — Additional Servitude — Consent or Condemnation —Cities—Drainage Ditch. A city was granted an easement to lay three or more twenty-four-inch pipes in a certain strip of the grantor’s land twenty-five feet wide, which extended from a creek to a canal for the passage of water, and the city, subsequently finding the pipes to be inadequate for the purpose, undertook to dig and substitute an open ditch twenty-five feet wide instead of the drainage pipes, without the consent of the grantor and without condemning a right of way for the ditch. Held, that the easement granted measured the rights of the parties, and that it did not give the city the right to an open ditch along the strip where the pipes were laid; and, further, that the additional servitude can not be imposed against the will of the grantor without a condemnation proceeding.</p> <p>2. - Additional Servitude Beneficial to Grantor of Easement. The fact that the open ditch might result in benefit to the grantor’s land does not warrant the city in making a substantial change in the easement or in enlarging the use granted without the consent of the grantor.</p> <p>3. - Additional Servitude — Injunction. The attempt to make and use the open waterway in place of the drainage pipes, without obtaining the consent of the grantor or the legal right to do so, may b~6 restrained by injunction.</p>