Bingman v. Walter , 80 Kan. 617 ( 1909 )

"The opinion of the court was delivered by

Smith, J.:

It will be observed that the petition alleges that “at all times prior to the wrongful acts of -defendant hereinafter complained of” a certain condition of the stream existed on the plaintiff’s land, which he had obviated or remedied by building and maintaining a crossing or roadway across Elm slough. It is also apparent, although the allegations are somewhat ■disconnected, that the wrongful acts complained of relate to the raising and maintaining the height of the dam, which caused the alleged injuries.

It is contended by the defendant that-to constitute a ■cause of action the petition must show that the defendant had not lawfully acquired the right to raise the height of his dam. This identical question was presented in Akin v. Davis, 11 Kan. 580. In the opinion 'Mr. Justice Valentine said:

“It is also claimed that said petition does not state -facts sufficient to constitute a cause of action, because it does not state that the defendants did not obtain the Tight to flood the plaintiff’s land by virtue of proceedings under the mill-dam act. (Gen. Stat. 576, ch. 66.) It is not necessary that any such statement should be inserted in the petition. If it is true that the defendants have obtained any such right by virtue of proceedings under the mill-dam act, it is for them to plead it and prove it.” (Page 588.)

The specific acts which resulted in the continuing trespass or nuisance were pleaded, and if it was necessary to characterize the acts as unlawful it was done as above indicated. In Rhea v. Williams, post, it is said that the words “wrongful” and “unlawful” have the same significance.

It is further contended that the court erred in the judgment rendered in that the injunction was mandatory to reduce the dam to its former height and perpetual against erecting or maintaining it at a greater height than that at which it formerly had been maintained. It is said that the perpetual injunction debars the defendant from proceeding according to law to obtain the right to raise the height of the dam, and to pursue such authority, when so obtained. We do not understand the judgment to have this effect.

The judgment of the court is affirmed.