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6 Journal of the Kansas Association for Justice

uLead Litigating the Myriad of Harms Caused by Diffused Surface By Thomas A. Adrian & David J. Stucky

Thomas A. Adrian Last year many parts of Kansas .5 A number of complex and is a partner with experienced the worst on sometimes nonsensical legal approaches Adrian & Pankratz, record.1 Consequently, much attention deal with various classifications of water. P.A. Mr. Adrian was given to shortages of water. A Sometimes quite distinct rules exist completed both separate law called and other times the rules overlap. At his undergraduate “diffused surface water,” however, deals a fundamental level, surface water is and law degrees with water not generally useful for distinguished from groundwater since at Washburn consumptive use purposes. groundwater rests or flows beneath the University. He has Indeed, in light of concerns over water ’s surface. 6 Although a tendency served as lead counsel for the Equus shortages in Kansas, prevails to lump all surface water Beds Groundwater Management District together, a quite separate body of law has since its inception in 1975. Through his …it is difficult for many to imagine emerged to deal with diffused surface representation of the District, Mr. Adrian circumstances, other than or water. has gained vast knowledge on ground- natural disasters, under which the diffused surface water has been water law. He also has extensive experi- problem to be dealt with is the matter defined by Kansas cases as water that ence handling a number of other cases of overabundance of water.2 exists in an unconfined state.7 This may involving water law including surface include: water issues, inverse condemnation and Yet the problems posed by diffused environmental issues impacting water as surface water create perhaps the [W]ater from , melting snow, a . largest of litigation in water law. springs or seepage, or detached from This article seeks to classify diffused subsiding floods, that lies or flows on David J. Stucky surface water and the problems posed the surface of the earth but does not is an associate by it, examine applicable legal theories form a part of a watercourse or .8 with Adrian & and causes of action and conclude by Pankratz, P.A. He examining some general practical and The above definition may also completed his un- legal considerations one should make in include puddles or ponds formed by dergraduate degree litigating these types of cases. that have no outlet.9 This at Bethel College, although the following cannot serve definition excludes, however, flood KS, summa cum as an exhaustive discussion of the law in and overflow from and laude, and is a this area, it should serve as a practical .10 2008 graduate of the Washburn Univer- guide to handling these types of cases Confined surface water, in contrast, sity School of Law, magna cum laude, from a plaintiff’s perspective. offers a more reliable water source and where he served on moot court and as a is generally seen as an asset rather than comments editor for the law review. Mr. a liability.11 A waterbody may also be Stucky grew up on a farm and in light of Definition of Diffused Surface subject to state or federal regulation that background has focused a significant Water depending on the nature of the portion of his practice on water law, ag- Water can be classified into many waterbody.12 ricultural law and other issues impacting categories including, but certainly The term “watercourse” has natural . He also practices in the not limited to, natural watercourses,3 significance in the later discussion in civil litigation department of the firm. artificial waterbodies4 and this article;13 the definition of a , Journal of the Kansas Association for Justice 7

for instance, has recently been endorsed law of England.20 This rule is popular water increased, in Baldwin v. City of by the Kansas Supreme Court as “any in cities because it provides insulation Overland Park,32 the Court wrote: watercourse that has a well-defined bed from litigation and, thus, encourages and banks” so long as a watershed of development.21 Whenever a structure is erected in a certain acreage exists above the point in The civil law rule is really the city, whether it be a house, driveway, question.14 antithesis to the common enemy sidewalk, street or whatever, the area The distinction is also important rule and provides that water should for natural percolation of water is because many insurance policies exclude be allowed to flow its natural course diminished and the flow of surface damage caused by “surface water,” without human interference.22 Pursuant water is to that degree altered.33 which is generally interpreted to mean to a strict application of this theory, diffused surface water.15 the upper landowner may not alter In addition to incorporating the Casting water onto one’s neighbor’s the natural drainage pattern nor concept of natural flow, the common property can result in costly and increase the flow of water and the lower enemy rule is arguably further tempered catastrophic results including the landowner must not take action to by the concepts of malice, negligence destruction of buildings, death or repel the water.23 This rule discourages and reasonableness.34 bodily injury, the of , the development because it undermines the Williamson v. City of Hays35 seemingly obliteration of crops and other forms of predictability of how landowners may expanded the rule as it relates to cities. injury. use their land.24 Williamson involved a situation where despite the detriments associated In between these two theories landowners complained that the city’s with diffused surface water, it should exists the concept of reasonable use. storm sewer drainage system discharged be noted that there may also be some Reasonable use has evolved out of the water at a greater velocity onto their benefits. Kansas farmers, for example, tort principle of reasonableness and property.36 The landowners were not may value this source of water as a allows courts to judge a landowner’s located within city limits although the means to replenish livestock ponds. handling of diffused surface water based city had an easement over their property Consequently, devoid of consumptive on all relevant circumstances.25 for the storm sewer.37 use principles,16 landowners are Some states’ legislatures have codified The Court concluded that by virtue generally free to impound and use the above rules, and most states of the easement, the in question such waters.17 However, as water have now adopted a hybrid approach did not exist “wholly outside the shortages persist, litigation over the incorporating various aspects of the limits of any incorporated city.”38 This use of diffused surface water may three basic theories.26 It should also be holding is significant because it is quite become commonplace. This article, noted that regardless of the approach, common for a city to obtain easements however, only focuses on dealing with one can generally drain diffused surface or condemn properties miles outside the problems posed by diffused surface water into natural waterbodies, so long of its identified limits, yet the court has water. as the does not result from an signaled that the common enemy rule unreasonable use of the land, does not could still operate in these areas. exceed the capacity of the watercourse endorsing the language of an earlier Legal Approaches Applicable to or divert water that would not otherwise Kansas case, the Court also appeared to Diffused Surface Water reach the watercourse.27 revert back to a more pure form of the common-enemy approach for cities.39 In General The Kansas Approach With respect to handling diffused The common enemy rule can really be early Kansas courts, also probably surface water issues for agricultural land characterized as a rule of non-liability operating under the illusion that it was and highways located wholly outside of because it allows landowners to take the common law, adopted the common incorporated cities, Kansas courts have any action they see fit to avoid diffused enemy rule in seemingly its pure form.28 apparently adopted a derivative of the surface water from entering their land.18 The legislature subsequently modified civil law rule.40 Water is viewed as a common enemy to this approach.29 K.S.A. 24-105 applies the civil law be avoided.19 A pure application of this Presently, the Kansas Supreme Court rule to a situation where a landowner theory thus competes with the general has adopted a variation of the common constructs a or .41 In Clawson principal that landowners should not enemy rule for cities.30 Municipalities v. Garrison,42 the court expanded this manage their property in a manner that are not liable for an increased flow concept and wrote, harms others. of surface water caused by natural Historically, early American development so long as the natural [A]s to agricultural lands outside the jurisprudence adopted the common course of drainage is not altered.31 incorporated limits of a city, up- enemy rule under the mistaken belief In clarifying how a nuisance would per proprietors may not divert their that it was, in fact, also the common not exist even though the flow of surface surface waters by artificial means 8 Journal of the Kansas Association for Justice

onto the lands of lower proprietors Of course, comparative negligence hardships, the litigant may consider the nor accelerate by means of ditches or principles apply with respect to the reasonableness factors identified above increase the drainage of their lands to plaintiff’s conduct and may limit or in making a determination of the merit the injury of lower owners.43 undermine any recovery. of injunctive relief.65 another typical claim is nuisance.53 A final cause of action is inverse TheWilliamson Court’s reasoning A nuisance is usually associated with condemnation.66 A derivative of the leaves it unclear in many instances as an annoyance or use of property in an takings clause of the United States to which rule will apply. For instance, offensive manner.54 A private nuisance Constitution, an inverse condemnation an industrial may operate wholly relates to unlawful interference with action may lie where “private property outside an incorporated city, but the another’s use or enjoyment of land.55 has actually been taken for public land is not utilized for agricultural An intentional nuisance exists when a use without formal condemnation purposes.44 “defendant . . . specifically intend[s] to proceedings.”67 The case law makes it ambiguous damage the plaintiff or act in such a way In further contrast to condemnation regarding what rule will apply under to make it ‘substantially certain’ damage actions, the landowner must initiate the these circumstances. The civil law rule will occur.”56 A nuisance action against a action against the governmental entity.68 arguably only applies to agricultural municipality for diffused surface waters This has become a fairly and highways existing outside of is only actionable if the municipality cause of action against governmental incorporated cities.45 The presumption created or maintained the nuisance.57 entities for harmful activity concerning is that the common enemy rule is still in a trespass is an intentional tort unwanted water. Unfortunately, it is very force everywhere else.46 established by showing “defendant difficult to prove because Kansas courts Kansas has not yet adopted intends to have the foreign-matter have required “a permanent taking” and any specific factors to determine intrude upon the land, or where the not merely “intermittent or periodic” reasonableness as it relates to diffused defendant’s act is done with knowledge events of flooding.69 surface water and little direct that it will to a substantial certainty However, in Estate of Kirkpatrick support exists for the assertion that result in the entry of foreign matter.”58 v. The City of Olathe,70 although not a Kansas law even incorporates this Recent Kansas cases have suggested diffused surface water case, the Kansas principle as an independent theory.47 that trespass actions against cities will Supreme Court signaled that an inverse However, nationwide the concept of likely be difficult to prove using the condemnation claim may now be easier reasonableness has become a benchmark common enemy rule as a framework.59 to prove.71 This cause of action may and may find favor in cases involving In fact, a municipality may increase the also be appealing to plaintiff’s lawyers diffused surface water in Kansas.48 force, “flow and velocity of … surface because a successful case may merit the Other courts have identified a range water” discharged onto another’s award of attorney fees.72 of varying factors in this context property so long as it does not “disturb and some version of these common the natural drainage of water, nor … Considerations in Diffused factors should likely be cited if the shed water on a neighbor’s property Surface Water Cases litigant decides to mount a challenge to that would not otherwise have gone The following should serve as some reasonableness under Kansas law.49 there.”60 basic legal and practical considerations As a corollary to Kansas courts another common approach when a that a practitioner should make in infusing tort principles into diffused landowner has experienced or is about litigating diffused surface water cases. surface water theories, lawsuits in this to experience harm from diffused Again, this is far from an exhaustive list. area are often couched in terms of well- surface water is to seek injunctive recognized causes of action including relief.61 Injunctive relief is not Actionable Harm and Defenses negligence, nuisance, trespass, inverse appropriate where an adequate remedy The first step in evaluating a diffused condemnation and actions for injunctive exists at law, and where changes occur surface water case is determining the relief.50 to the flow of surface water, recovery of nature of the pertinent events allegedly a negligence claim could exist damages may be appropriate.62 causing the injury and obtaining where it is shown that a duty existed as another cautionary note, the any relevant history from the client. not to harm other landowners or if plaintiff may be required to ultimately Using the above principles, the lawyer the defendant’s conduct changed the post a bond and this amount could be should attempt to quickly determine if drainage in an unreasonable manner.51 extensive.63 Where the landowner seeks actionable harm even exists. Knowing Establishing a duty in a negligence to force the removal of a structure or which theory applies is significant case could be established by or exist mandate the restoration of the land, a because of the differing burdens of independently of the duties implied mandatory action may be sought. proof.73 by the Kansas versions of the civil This remedy is often disfavored.64 In addition to the many defense law and/or common enemy rules.52 Because of the need to weigh the considerations identified in this article, Journal of the Kansas Association for Justice 9

it merits additionally noting that a the ability to determine or estimate cases — will then need to opine that governmental entity may be able to rely damages.”83 Additionally, the statute of the plaintiff’s injury was caused by the on the blanket of protections offered limitations may not begin to run until defendant’s conduct and not by by the Kansas Tort Claims Act.74 the injured knew or reasonably should another source. This should include When applicable, the plaintiff’s lawyer have known of the source of the harm or an analysis of exactly how the injury must factor in this immunity and the the permanency of the harm.84 occurred. specific rules governing lawsuits against Hiring an expert quickly is important governmental entities. Determining the Existence of Natural because — like an automobile accident Watercourses case — evidence or features of the land Statute of Limitations It is imperative to identify the relevant to a proper evaluation may as with any plaintiff case, upon natural watercourses that exist in the quickly disappear. Experts should also analyzing if an actionable injury area and the existing and historical be hired to determine the extent of the occurred, the next step is ascertaining drainage pattern. As noted above, this is damage. This may include appraisers the applicable statute of limitations important because actions that simply or contractors providing estimates of period and when it runs. Regarding help to divert water that would have damage to structures. the pertinent limitations period, naturally flowed into a given drainage an expert with a Ph.D. in crop this depends primarily on the type structure acts as a defense to a legal science, agronomy or horticulture may of injury and the nature of the legal claim in this area. help to assess damage to crops and other theories advanced.75 For most causes Significantly, courts have held that . A certified Kansas arborist may of action, the relevant limitations an artificial structure or diversion can further help to determine damage to period is two years.76 However, for become part of the natural watercourse trees. inverse condemnation actions against upon a sufficient passage of time.85 Thus, Kansas State University has even governmental authorities, it appears over the years, a landowner may even developed guidelines that may aid in that the limitations period is actually 15 have a duty to maintain an artificial calculating many forms of agricultural- years.77 structure to ensure the natural flow of related damages. Although obtaining Determining when the limitations water.86 an expert is a must, selecting a qualified period commences can be particularly expert is extremely important as well difficult and reconciling law in this area Importance of Expert Witness because the case may crumble based on can seem nonsensical and often leads In order to prevail in a diffused unsubstantiated “expert” assertions.89 to harsh results. One must assess if the surface water case, it is absolutely injury was temporary or permanent crucial to obtain appropriate expert Inspecting the Scene in nature.78 If the injury was merely witnesses.87 In fact, the failure to hire To truly obtain a handle on the facts temporary, a new cause of action can an expert witness could prove to be fatal of the case, there is no substitute for accrue with each new injury until to winning the case.88 The plaintiff’s inspecting the land(s) subject to the the injury becomes permanent.79 The lawyer should hire an expert that can litigation. A trained lawyer may even linchpin of a temporary cause of action determine the drainage pattern of the identify aspects of the scene relevant is whether the cause of injury is abatable land. Usually, this should be a licensed to the case that others will miss. A by the defendant or the injury “may and engineer/hydrologist with proper picture is worth a thousand words and will be terminated.”80 credentials. the lawyer should immediately begin to In contrast, if a court deems an This same expert — or even a take relevant photographs. injury permanent in nature, then more specialized expert in certain additionally, clients usually the limitations period begins to toll upon the occurrence of the actionable event and no subsequent litigation may be brought upon the conclusion of the applicable limitations period.81 Permanent damages stem from a lasting and non-abatable cause of injury and refer to an entire award of damages for “past, present and prospective.”82 In assessing whether an injury is permanent or temporary, Kansas courts appear to look at three factors: “(1) the nature of the causative structure, (2) the nature of the damages, and (3) 10 Journal of the Kansas Association for Justice

appreciate their lawyers being willing documents often targeted in discovery repel floodwaters from streams); Wadley, “to strap on their rubber boots” and that might be relevant. supra note 2; see also Parker v. City of wade firsthand through the nature of Atchison, 58 Kan. 29, 48 P. 631 (1897) the problems caused by the water. Conclusion (regarding interference with the flow of a Litigating diffused surface water stream). Interviewing Witnesses cases can be complex but rewarding. 11 Wadley, supra note 2; Diffused Surface Interviewing all applicable witnesses The information in this article should Water, 2-10 Waters and Water Rights can be crucial. One should visit with help to provide an understanding of § 10.03 (LexisNexis/Mathew Bender 2012). other neighboring landowners and the nature of diffused surface water, 12 an example of federal regulation is the determine predecessors in title. A prior outline some of the applicable theories National Discharge Elimination landowner may identify, for instance, and identify some considerations the System of the Clean Water Act. Kansas that the event complained of has practitioner should make in handling has adopted an intricate statutory system occurred multiple times in the past or these cases. concerning water regulated by the state. that significant runoff was common as society’s needs evolve, the law 13 See Gibbs v. Williams, 25 Kan. 214, 220 even prior to the defendant’s conduct. in this area will also likely change its (1881) (providing an early definition of a Friends and family members of course and flow in a new direction.p watercourse). the parties may also supply valuable 14 K.A.R. § 5-40-1(zz); Frank v. Kansas information. Interviewing witnesses is Department of Agriculture, 40 Kan. App. important in assessing a case because Endnotes 2d 1024, 1029, 198 P.3d 195 (Ct. App. 2008). your opponent will likely do the same 1 Farmers Face Losses During Record-breaking 15 Diffused Surface Water, supra note 11. and there is nothing worse than an Drought Season, USA Today, July 30, 2011, at 16 But see Kan. Stat. Ann. § 42-353 (suggesting unexpected and harmful witness B1. a consumptive benefit by allowing emerging after exhausting significant 2 See James B. Wadley, Diffused Surface Water, “proprietor of any lands which have become litigation time and costs. 6-50 Thompson on Real Property § 50.20 saturated by seepage waters flowing out of (Thomas ed., 2011). any ditch, , reservoir or conduit … Evidentiary Considerations 3 See infra notes 13, 14, 85, 86 and [to] apply the same to domestic, agricultural, There are many sources of evidence accompanying text (discussing watercourses). manufacturing or other purposes in his that aid in developing these types of 4 artificial waterbodies are treated differently pleasure”). Arguably, however, the waters cases. A host of state and federal under the law than natural sources of water. referenced in this statute may not even fall governmental agencies have records that 5 See infra note 6 and accompanying text into a category of diffused surface water as might be obtained including the United (defining groundwater). For an excellent noted in this article. States Geological Survey, the Kansas history and overview of water law in 17 See, e.g., Kan. Stat. Ann. § 42-313; See also Department of Transportation and the Kansas, see John C. Peck, The Kansas Water Kan. Stat. Ann. § 82a-728 (referencing Kansas Division of . Appropriation Act: A Fifty-Year Perspective, impoundments of water under a certain Local county and city departments 43 Kan. L. Rev. 735 (Winter 1995). A size). This has often been identified as a rule such as planning and zoning, and discussion of this extensive topic is beyond of capture. Diffused Surface Water, supra bridge, and register of deeds contain the limited scope of this article. note 11. valuable resources. Along with zoning 6 See The Restatement (Second) of Torts 18 Wadley, supra note 2. records, past deeds can indicate when § 845 (2011). Groundwater has also been 19 One commentator characterized this theory construction occurred and the previous defined as follows: “Water that exists in as “a neighborhood contest between pipes ownership of land. A lawyer should also the interstices of rocks is called subsurface and dikes from which ‘breach of the peace is look for any past surveys conducted water…; that part of subsurface water in often inevitable.’” R. Timothy Weston, Gone concerning the impacted properties. interstices completely saturated with water with the Water: Drainage Rights and Storm These may indicate how the drainage is called groundwater.” George Gould, Water Management in Pennsylvania, 22 Vill. pattern has changed. Douglas Grant & Gregory Weber, L. Rev. 901, 902 (1977). Multiple other documents may aid in Water Law 325 (2005) (Emphasis in 20 Wadley, supra note 2; Diffused Surface Water, the development of the case and should original) (Citations omitted). supra note 11. Most courts have now aban- be sought through discovery including 7 dougan v. Rossville Drainage Dist., 243 Kan. doned or modified the pure application of the aerial and other photos, a topographical 315, 757 P.2d 272 (1988); Clawson v. Garrison, common enemy rule. map of the larger drainage system, 3 Kan. App. 2d 188, 592 P.2d 117 (1979). 21 Wadley, supra note 2. weather records, receipts, valuations 8 Restatement (Second) of Torts § 846 22 Id. and other evidence of damages, (2011). 23 Id. correspondence concerning the subject 9 See Wadley, supra note 2. 24 Id. matter of the dispute, diaries and 10 See Kan. Stat. Ann. § 24-126 (requiring 25 Id. handwritten notes, and other general permitting for improvements designed to 26 Diffused Surface Water, supra note 11. Journal of the Kansas Association for Justice 11

27 Kan. Stat. Ann. § 24-106; Wadley, supra note 40 See, e.g., Kan. Stat. Ann. § 24-105. Originally, 2. the civil law rule was seen as prohibiting 28 See, e.g., Missouri Pac. Rly. Co. v. Keys, 55 any interference with the natural flow. See Kan. 205, 217, 40 P. 275 (1895) (regarding Murphy v. Fairmount Township, 89 Kan. 760, diffused surface water as “an outlaw, against 133 P. 169 (1913). which any landowner affected may fight”). 41 In relevant part, Kan. Stat. Ann. section 29 For background on these legislative changes, 24-105 reads: “It shall be unlawful for a please see Robert W. Coykendall, Too landowner or proprietor to construct or The Best of Much of a Good Thing: Kansas Law on maintain a dam or levee which has the effect CLE Seminar Unwanted Water, 66 J. Kan. Ass’n 24, of obstructing or collecting and discharging 25 (1997). with increased force and volume the flow of 30 Williamson v. City of Hays, 275 Kan. 300, surface water to the damage of the adjacent Friday, June 8 64 P.3d 364 (2003) (noting that “the com- owner or proprietor.” 8 a.m. to 5 p.m. mon–law rule (common-enemy doctrine) 42 3 Kan. App. 2d at 188. KsAJ Headquarters is still in effect with respect to lands inside 43 Id. at 203; see also Bower v. O’Malley, 2008 Topeka city limits”); Baldwin v. The City of Overland Kan. App. Unpub. LEXIS 797, at *5, 192 P.3d Park, 205 Kan. 1, 468 P.2d 168 (1970). 1130 (Ct. App. Oct. 3, 2008) (reapplying the Stan Hazlett 31 Baldwin, 205 Kan. at 8; Duncan v. City of Ar- rule adopted in Clawson). Ethics of Personal kansas City, 35 Kan. App. 2d 44, 128 P.3d 417 44 See Williamson, 275 Kan. at 304-306 (sug- Injury (Ct. App. 2006) (“A city has no duty to pro- gesting limits to geographic scope of civil law vide drainage to take care of surface waters, rule). and ordinarily its failure to protect citizens 45 a strict reading of Clawson further makes Jan Fisher from surface water is not actionable.”). it unclear if the civil law rule only applies to 32 205 Kan. at 1. agricultural lands absent the applicability of 33 Id. at 8. Kan. Stat. Ann. section 24-105. See 3 Kan. David Morantz 34 See Diffused Surface Water, supra note 11 App. 2d at 203. (identifying the trend toward reasonable use 46 Wadley, supra note 2. across the United States). Moore v. Associated 47 See Coykendall, supra note 29, at 28 (“It Metal & Supply Co., 263 Kan. 226, 948 P.2d would appear that virtually any change in the Margaret Farley 652 (1997) infused the theory of negligence flow of water that causes substantial injury to Comparing Apples and into Kansas law in this area. Although really another landowner could give rise to a tort Oranges: Analyzing no direct support exists for the assertion that claim.”). As indicated, many cases involving Different Liability the concepts of malice and reasonableness diffused surface water are couched in terms Issues for NFs and hold weight under Kansas law, given the right of tort principles and some indication exists ALFs facts, arguments related to these concepts that the concept of reasonableness should be may be persuasive given the overwhelming addressed in a lawsuit under Kansas law. national trend. 48 C.f. Diffused Surface Water, supra note 11; see Lynn Johnson 35 275 Kan. at 300. also Coykendall, supra note 29, at 27 (noting 36 Id. at 301-302. the “definite tension” between tort theories 37 Id. at 304. and traditional surface water principles). Pat Nichols 38 Id. at 306 (quoting Kan. Stat. Ann. § 24-105). 49 These factors include: 1) the benefit to the Ethics of Negotiation 39 Id. (“In cities where the common-law is drained land, 2) the injury to neighboring and Mediation still in force, the ‘landowner has the right lands, 3) the extent of the alteration of the to use and improve his own land for the drainage system, 4) the burden on either purpose for which similar land is ordinar- party of remedying the injury, 5) the neces- Larry Wall ily used; and he may build upon it, or raise sity of changing the drainage system, 6) the or lower its surface, even though the effect defendant’s motive, 7) the foreseeability of Register online at may be to prevent surface water, which injury to other landowners, 8) justice and www.ksaj.org/cle before flowed upon it, from going upon it, or the general welfare, 9) the location of the Registration Fees: to draw from adjoining land surface water impacted lands, 10) the existence of public $280 KsAJ Members which would otherwise remain there, or to authorization and 11) the protection of exist- ($140 Less than 10 Years in Bar) shed surface water over land on which it ing values. Diffused Surface Water, supra note $336 Non-Members would not otherwise go.”) (quoting Liston 11. ($168 Less than 10 years in Bar) v. Scott, 108 Kan. 180, 183-84, 194 Pac. 642 50 See Coykendall, supra note 29 (providing a (1921)). discussion of these more common causes of 12 Journal of the Kansas Association for Justice

action). actionable even if the civil law rule applies. 76 Kan. Stat. Ann. § 60-513. 51 Williamson, 275 Kan. at 311-312 (noting that Cooseman, 2008 Kan. App. Unpub. LEXIS 77 Hiji v. City of Garnett, 248 Kan. 1, 9, 804 P.2d “the installation and construction of the 592, at *6, 22, 30. 950 (1991). streets and storm sewers were in conformity 65 See supra note 43 and accompanying text. 78 See Zomberg, supra note 66 (comparing cases with generally recognized and prevailing In particular, a court will examine the nature in this area). standards”). of the plaintiff’s conduct and ensure that 79 Gowing, 219 Kan. at 143-44. 52 See Id.; Coykendall, supra note 29. the plaintiff has not engaged in problematic 80 Isnard v. City of Coffeyville, 260 Kan. 2, 9, 917 53 The common law theories concerning dif- or inequitable conduct. See Clawson, 3 Kan. P.2d 882 (1996). fused surface water actually did not apply to App. 2d at 202. 81 Because the cause of permanent damages pollution caused by water runoff and these 66 See Nicole M. Zomberg, Flooding of Private may be difficult to readily identify and the problems were typically addressed through Property by the Construction of a Public application of the distinction can often lead a theory of nuisance. Diffused Surface Water, Improvement: Isn’t It Time for Kansas to to unforgiving consequences, at least one supra note 11. Call It What It Really Is—a Compensable commentator has suggested that litigation 54 Smith v. Kan. Gas Serv. Co., 285 Kan. 33, Taking?, 38 Washburn L.J. 209 (Fall 1998). is actually encouraged. See Zomberg, supra 47, 169 P.3d 1052 (2007) (quoting Vickridge 67 Estate of Kirkpatrick v. The City of Olathe, note 66, at 224. Homeowners Ass’n, Inc. v. Catholic Diocese 289 Kan. 554, 215 P.3d 561 (2009); Deisher v. 82 Isnard, 260 Kan. at 8. of Wichita, 212 Kan. 348, 354, 510 P.2d 1296 Kansas DOT, 264 Kan. 762, 772, 958 P.2d 656 83 Id. at 9. (1973)). (1998). 84 See Kan. Stat. Ann. § 60-513; Thierer v. Board 55 Id. 68 Deisher, 264 Kan. at 771-772. of County Commissioners, 212 Kan. 571, 512 56 Sandifer Motors, Inc. v. City of Roeland Park, 69 See, e.g., Bowen v. The City of Kansas City, 231 P.2d 343 (1973). 6 Kan. App. 2d 308, 318, 628 P.2d 239 (Ct. Kan. 450, 455, 646 P.2d 484 (1982). 85 Baldwin, 259 Kan. at 316. The Baldwin App. 1981). 70 289 Kan. at 554. Court did not articulate how this can occur, 57 Davis v. City of Lawrence, 1990 Kan. App. 71 Id. at 568. Kirkpatrick involved a situation but presumably through a theory of prescrip- LEXIS 687, at * 11, 797 P.2d 892 (Ct. App. where a roundabout built by the city altered tive easement. Coykendall, supra note 29, at Sept. 14, 1990) (holding that with the expan- the flow of the groundwater and flooded the 29. sion of the city the old “sewer is merely property owner’s basement. Id. at 563-64, 86 Wadley, supra note 2. inadequate to handle the flow of the water” 571. Interestingly, the case distinguishes 87 See James Lockhart, Cause of Action for and a nuisance did not exist). Bowen as not involving an inverse condem- Damage Caused by Change of Flow of Sur- 58 Williamson, 275 Kan. at 308. nation claim. Id. at 571 (“First, we note that face Water, 16 Causes of Action 675 § 29 59 Id. at 308-311. Bowen involved an action for nuisance—not (2008). 60 Id. at 310-311. for inverse condemnation—where different 88 See, e.g., Davis v. City of Melbane, 132 N.C. 61 For a discussion of injunctive relief as it principles govern recovery.”). The Court was App. 500, 512 S.E.2d 450 (N.C. 1999) (hold- relates to diffused surface water see the paral- incorrect in this distinction as Bowen clearly ing that where landowners were attempting lel cases of O’Malley, 2008 Kan. App. Unpub. addressed both claims of nuisance and to prove damages resulting from increased LEXIS 797, at *1 and Bower v. Cooseman, inverse condemnation. See Bowen, 231 Kan. flooding caused by city, their testimony 2008 Kan. App. Unpub. LEXIS 592, at *1, 185 at 455. The Kirpatrick Court further stressed was not enough and expert testimony was P.3d 972 (Ct. App. June 20, 2008). that recovery should not be limited to only required); see also Williamson, 275 Kan. 62 Mark S. Dennison, Proof of Landowner’s Un- permanent takings at 308-312 (denying plaintiff landowners’ reasonable Interference With Surface Water, as suggested in Bowen—thus perhaps adding claims that the city’s sewer drainage system 87 Am. Jur. Trials 423 § 24 (2008); see also to the optimism that an inverse condemna- discharged water onto their land at a higher Gowing v. McCandless, 219 Kan. 140, 547 tion claim may be successful in a diffused velocity because landowners failed to provide P.2d 338 (1976). surface water case. See Kirkpatrick, 289 Kan. scientific or quantifiable evidence to support 63 See Kan. Stat. Ann. § 60-905. at 571. their claims); Cooseman, 2008 Kan. App. 64 See e.g., Clawson, 3 Kan. App. 2d at 202 72 Id. at 574. Unpub. LEXIS 592, at *10, 23-25 (noting that (involving the requested removal of a dike). 73 For instance, if the common enemy rule plaintiff failed to both establish evidence of It has been held that a landowner may not applies it is presumed initially that one may damages and provided insufficient expert enjoin the “routine maintenance” of a water- deal with the water freely whereas if the testimony in action against a defendant for way or ditch, which may involve the removal civil law rule applies it is presumed that the reconstructing a waterway). of trees and silt and changing the course of landowner cannot alter the drainage pattern. 89 See Duncan, 35 Kan. App. 2d at 51 (identify- the waterway. See O’Malley, 2008 Kan. App. 74 See Kan. Stat. Ann. § 75-6104(m); Duncan, 35 ing contradictory nature of expert opinion); Unpub. LEXIS 797, at Kan. App. 2d at 50-51; Zomberg, infra note Cooseman, 2008 Kan. App. Unpub. LEXIS *1; Cooseman, 2008 Kan. App. Unpub. 66. 592, at *10, 23-25 (determining that expert’s LEXIS 592, at *1. It was also noted that a 75 See Zomberg, supra note 66 (providing a opinions lacked a proper foundation and minor increase in the volume of water cast discussion of limitations periods related to basis and thus were not persuasive). onto a neighbor’s property might not be surface water cases in general).