Too Much of a Good Thing Kansas Law on Unwanted Water
| Publication year | 1997 |
| Pages | 24 |
66 J. Kan. Bar Assn. September, 24 (1997). TOO MUCH OF A GOOD THING KANSAS LAW ON UNWANTED WATER
September, 1997
Copyright (c) 1997 by the Kansas Bar Association; Robert W. Coykendall
Introduction
The struggle between the right of a landowner wanting to put land to new uses and neighboring landowners disturbed by the changed use is a long and continuing one. In Kansas, one of the battlefields in the continuing conflict over competing rights of landowners is the area of protecting land from flooding and the necessarily related area of land drainage. As the population has grown and land uses have changed, so has the resolution of the competing rights of landowners. One recent decision, Johnson v. Board of Pratt County Commissioners, [FN1] suggests that more changes are to follow.
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Kansas drainage and flood control law flows from three distinct springs. Common law rights remain in place to regulate some rights to control surface and river waters; statutory provisions govern others; and tort law remedies have waded in with solutions that may or may not be consistent with the other two sources of drainage and flood control law.
All three sources of law share the difficulty of identifying when rights become fixed. When the limitations period runs to prevent claims and fix rights is an area replete with uncertainty. In light of Johnson v. Board of Pratt County Commissioners, [FN2] the need for certainty in determining when limitations periods run is even more important.
The concepts of flood prevention measures and drainage issues should be considered distinct from issues of riparian rights, which largely involves the beneficial use of water. When discussing drainage issues affecting lands not located on watercourses, "riparian" rights clearly is an incorrect term. When discussing the right to divert water into, or confine floodwaters within a river or other watercourse, the term, in some sense, is applicable. [FN3] For the sake of clarity, this article will not use "riparian rights" to describe the rights or obligations arising in the case of unwanted water.
Water law historically has included a number of distinctions, not all of which are intuitively clear or scientifically justifiable. [FN4] One distinction is between diffused surface water [FN5] and waters in a watercourse. Because the treatment of water under the law varies depending upon how water is categorized, this article will look at how each source of law treats these categories of water.
I. Kansas Common Law
The Kansas courts adopted the common law approach to liability for the drainage of waters from lands, until that approach was changed by legislation enacted in 1911. The common law set the rules regarding both surface waters and water in a watercourse.
A. Surface water at common law
Under the common law rule, there was no obligation for a neighbor to permit surface water to flow across the land. Surface water was regarded as "an outlaw, against which any landowner affected may fight." [FN6] "In a word, neither the right to discharge nor to receive surface water could have any legal existence except from a grant, express or implied." [FN7] This rule was haled as "both just and wise." [FN8]
At common law, landowners were free to construct such levees or other structures as they desired to keep surface waters from coming upon their land. The landowner from whose land these waters could no longer flow, had no right to challenge these structures.
Common law also prohibited, "the discharge of surface water, in a manner not its wont, through an artificial channel, by one proprietor upon the land of another, to his damage." [FN9] It also violated common law to dig ditches for the purpose of draining wet land. " A landowner may not, by way of drainage only, improve his own land by transferring to the land of another a burden which nature imposed upon his own lands." [FN10]
According to these rules, a landowner was free to repel surface water back onto the neighboring land on which it originated, but once that water came onto the land, it could be removed only in certain ways. Surface water could be diverted into a natural watercourse-- but only to the extent that the natural watercourse would accommodate it, and only if that surface water would otherwise drain off of the landowner's property. Surface water could be allowed to follow its natural drainage course, but if a lower riparian owner constructed his own levee, or otherwise changed the lower land so as no longer to accommodate the normal flow of surface water, there was virtually nothing that the upper riparian owner could do.
B. Common law and watercourses
Kansas first adopted the common law with respect to rights in a watercourse. At common law, land along a water-course carried with it the right to the natural flow of that watercourse. Any alteration to the flow, by reason of diversion from his land, or the addition of water to the stream, or any change that causes the stream "to flow upon his land at a different place from its natural channel, or at a different level, or in an unnatural manner" was prohibited at common law. [FN11]
The common law clearly prohibited a lower landowner from obstructing an existing watercourse. [FN12] This rule, predicated upon public necessity, [FN13] prevented the forced accumulation of water on a neighboring land where it had no outlet, such as to render otherwise useful land useless but only when there was a watercourse. This rule preventing the flow of water only applied to a "watercourse," which the Court
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defined as follows:
[F]or a water-course there must be a channel, a bed to the stream, and not merely low land or a depression in the prairie over which water flows. It matters not what the width or depth may be, a water-course implies a distinct channel, a way cut and kept open by running water, a passage whose appearance, different from that of the adjacent land, discloses to every eye on a mere casual glance the bed of a constant or frequent stream. [FN14] Much of the common law litigation over water drainage centered upon the question of whether land use changes blocked a watercourse or simply prevented surface water from flowing across lands. [FN15] Bridges were required to be constructed so as to allow the passage for "all water that may reasonably be expected to flow through such watercourse." [FN16] This requirement obligated bridges to be constructed long and high enough to permit the passage of as much floodwater as could reasonably be anticipated to flow down or along the watercourse. [FN17]
Perhaps the most frequently quoted case on a landowner's rights with respect to the right to control flooding from a stream is Parker v. City of Atchison. [FN18] In that case the Court enjoined a landowner from erecting cribbing between one bank of a stream and the normal low water flow in an effort to trap sediment released from floodwaters and so to elevate the lot. The Court held that this structure could be enjoined. In so holding the Court said that although landowners "had a right to confine the waters of the creek to the channel, ... in order to protect their property from the overflow and waste," [FN19] the property owner could not do so "in such a way as not to interfere with the rights of others." [FN20] A landowner:
[c]annot build and maintain structures which will change the channel of the stream, or project the water against and upon the property of another in such a way as will result in substantial injury to either an owner upon the opposite side of the stream, or those above or below. [FN21] Levees or other elevated constructions in flood plains that caused increased flooding on other lands during times of "ordinary flooding" violated common law. [FN22] Floodwaters that were "accidental or extraordinary" were treated as surface water, and could be fought by whatever means. [FN23] Whether a flood was "ordinary" or "extraordinary" was a question based on whether the flood was foreseeable, and whether the flood's magnitude and destructiveness could have been guarded against "by the exercise of ordinary foresight." [FN24]
Common law permitted a person to construct a channel to carry water across that person's land and direct that water into a natural watercourse, so long as the natural capacity of the watercourse was not exceeded. [FN25] This right could be exercised even if some injury was inflicted upon the lower owner's land.
The common law classifications were not intuitively apparent. Liability for water cast upon property depended upon whether the water was labeled surface water, floodwater, [FN26] or water in a natural watercourse. Different results pertained if the water was cast upon the land by means of ditches or if it was diverted there by levees. Liability also depended upon whether the unwanted water was the product of an "ordinary" or "extraordinary" flood.
At common law, the relative uses of the land simply did not matter, and, for this reason, the common law could lead to harsh results. In one extreme case, one landowner was free to use the land in a manner that forced surface water onto the property of an existing neighboring business, preventing it from functioning. [FN27] A lower riparian owner could prevent surface water flow onto that owner's land, even if it made neighboring land useless, and even if more total usable land would be available if the surface water was allowed to flow naturally.
II. Statutory Changes To Common Law Rules
In 1911 the Kansas Legislature abrogated common law rules regarding land drainage and flood control in certain instances. In doing so, it preserved some common law distinctions, such as the distinction between diversions...
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