Morris v. City of Kansas City , 189 Kan. 52 ( 1961 )

Fatzer, J.,

dissenting: In my opinion the city is not hable for damages under the record presented. It did not create the inadequate drain complained of. The alleged nuisance was within the city as a result of an extension of its corporate limits pursuant to the exercise of governmental power by ordinance annexing property, which included the plaintiff’s home. Rut passing that thought, the evidence, in my opinion, is insufficient to support the jury’s finding that a nuisance existed. Assuming, arguendo, that a nuisance did exist, the evidence does not reveal any degree of maintenance of the drain by the city under the ordinary usage of the term. On that point the evidence is indeed sparse and strained. Nowhere was there anything to show upkeep, repair or replacement. Furthermore, the home in question was constructed in the bottom of a natural drainage basin and plaintiff purchased the property with full knowledge that flooding might occur — in fact, he obtained a reduction of the purchase price on that account. More could be said, but time does not permit. I would reverse the judgment.