Bailey v. Brown , 125 Kan. 629 ( 1928 )

The opinion of the court was delivered by

Hopkins, J.:

In a petition for rehearing, most of the questions previously presented are again energetically argued: We have given the various contentions due consideration, but find nothing that would justify a change in the decision already made or warrant a rehearing. One matter, however, not previously argued claims attention. Plaintiff, says: “At all events, the least that appellant is entitled to is to have a perpetual injunction against Brown to restrain him from raising the dike to a point no higher than it was originally constructed by appellant and Cawley.” The defendant makes no contention that he has a right to change the original agreement by enlargement of the dike, and we assume that he has not and will not attempt to do so. The record discloses no evidence on this point. We are of opinion that defendant has no right to modify the terms of the original agreement by enlargement or extension of the dike, and that if he should do so the plaintiff would be entitled to restrain and enjoin him therefrom.

The petition for rehearing is denied.