Daily Development for
Friday, October 25, 1996

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

WATERS AND WATER RIGHTS; MUNICIPAL LIABILITY: A municipality may be liable to riparian landowners for erosion damage caused by replacing a bridge in a manner that alters an existing watercourse, even when that watercourse had been created by the earlier bridge construction, and even when the new bridge construction restores the natural flow.

Johnson v. Board of County Commissioners of Pratt County, 913 P.2d 119 (Kan. 1996).

Landowners sued for negligence, alleging that the county's construction of a new bridge widened the channel of a river bisecting the owners' property, which in turn caused portions of the property to wash away during floods. Affirming the trial court's denial of summary judgment for the county, the Kansas Supreme Court held that the county owed the same duty that an individual would to refrain from causing property damage by altering a river's drainage. The Court rejected the county's argument that the claim was barred by the county's duty to maintain adequate bridges, which arguably compelled it to build a new and larger bridge. The Court concluded that the duty regarding the bridge must be "superimposed" on the county's duty to avoid injury to downstream property owners.

The most intriguing aspect of the case is the court's holding, based apparently upon well established (but old) authority, that a landowner has a right to protection of continued flow of a watercourse that was artificially established at an earlier period. The original bridge, which was 57 feet long, had altered the watercourse and regularly caused flooding to the south in heavy weather. The new bridge, 167 feet long and two feet higher, was designed in accordance with federal and state regulations to accomodate a twenty five year flood and to have minimal impact on a 100 year flood. By restoring the flood waters to the original channel, the new bridge design increased significantly the flow in the channel at flood time (as compared to conditions with the old bridge), which led to erosion of landowner's property on the north bank, downstream from the bridge. Even though this might have been the original flow in the channel, however, the court holds that the landowners had an entitlement to conditions as established by the prior condition.

Note: The court also has some intriguing discussion of the nature of landowner's claims as permanent vs. continuing nuisances. Permanent nuisances would be time-barred.

Comment: The case was simply a remand from a reversal of summary judgment on certain issues. Perhaps we will see another appeal of this one. But the editor views this case as potentially very mischievous.

The concept that a landowner has a vested right to the status quo created by prior artificial alterations of a watershed could lead to massive financial obstacles to necessary improvements. The public should not be responsible to compensate individuals who have been the temporary beneficiaries of earlier public or private decisions that now prove to be inappropriate.

Note that the court concludes that landowners at remote locations downstream from the bridge would be able to make a nuisance claim. This could lead to expensive battles of hydrologists arguing over impacts and injuries - even when the conditions are no more or less than the original natural conditions.

It should also be noted that the increased development of all ground in America has led to a significant increase in flooding over time, and there is no doubt that the overall impact on the riparian landowners probably is as much the result of this increased flooding as it is the consequence of the bridge alterations.

Would it be better to regard the impacts on the affected landowners here as simply the inexorable result of progress in society - the same progress that gave the landowners the value in their land in the first instance? Are they, and all other riparian landowners in this situation, similar to persons whose property abuts a public highway? Such persons suffer noise and other ill effects, but the vast majority of the cases finds no compensable injury. There are just too many plaintiffs, and to honor their claims would stifle desireable public projects.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last five years, these Reports annually have been collated, updated, indexed and bound into the Annual Survey of Developments in Real Estate Law, volumes 1-5, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Laprica Mims at the ABA. (312) 988 6233 or LaPricaMims@staff.abanet.org

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