Whitehair v. Brown

Citations

• 80 Kan. 297
• 102 P. 783
• 1909 Kan. LEXIS 64

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Easements — Prescriptive Bight to Maintain a Dam — Interference by Riparian Landowners. Where a dam across a stream has been maintained for fifteen years — the period of. limitation for actions to determine an interest in real property — the right to its continued maintenance can not ordinarily be assailed by upper riparian landowners.</p> <p>2. --- Grounds for Injunction — Unusual Overflow of Riparian Land. Assuming that the right acquired by the maintenance of a dam for the period of limitation is not measured by its height, but by the actual extent to which it has caused the overflow of riparian lands, a showing made by a landowner that it has recently occasioned the temporary flooding of his property to a greater extent than ever before does not necessarily entitle him to an injunction against it. He must also show reasonable grounds for fearing the recurrence of the conditions occasioning his new injury with such frequency as seriously to affect the value of his land, or other considerations rendering his remedy at law inadequate.</p> <p>3. - Grounds for Injunction — Change of Use. The prescriptive right acquired by the maintenance of a dam across a stream for the period of limitation is not affected by the purpose for which the water-power is employed. A riparian owner who by lapse of time has lost the right to object to a dam used to operate a flouring-mill can not enjoin its continuation as a means of providing power, for an electric-light plant, unless upon a showing that such change operates to his prejudice by causing a greater obstruction to the flow.</p>