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Findings of Fact would have been reduced about .04 of a foot per second. There is no evidence that the plaintiffs' land has been flooded since 1945.

11. Prior and subsequent to the time the levee was built, the direction of the Kansas River's main current by the plaintiffs' property was from the right of center to and against the north bank. Prior to the time the levee was constructed the waters of the river in flood stage above elevation 790 feet flowed and spread out over the flood plain on the south bank of the river, depositing silt and debris there and on the plaintiffs' land on the north side of the river. Muskrat and beaver were able to maintain holes in the river bank along the plaintiffs' land only prior to 1943. The broad flood plain enabled the river at flood stage to have a current of slightly less velocity than after the leveo was built and prevented flood waters from cutting into the plain south of the bend and spreading out of the regular channel into that area of considerable size.

12. During floods prior to 1943, the plaintiffs' land was submerged to a depth of 5 feet before any water overflowed on the south side of the river. After construction of the levee it prevented overflow of the south bank only when the stage of the river was above 790 feet and the plaintiffs' land was already under 5 feet of water. At the time of peak discharge in a flood of the magnitude of the 1943, 1944, and 1945 floods, the amount of flow which was prevented from overflowing the south bank was about four percent of the entire discharge of the river. In 1943, at the crest of the flood, about 6,000 cubic feet per second of the total discharge of the river of 147,000 cubic feet per second was prevented from flowing behind the levee.

13. The flood of the Kansas River in June 1943 caused part of the plaintiffs' land to cave into the river. How much of the plaintiffs' land was lost in the 1943 flood is not established by the evidence, nor do the plaintiffs assert a claim therefor. The evidence does establish that between 1930 and 1943 a total of 11.1 acres of farm land was lost to the river from the total lands owned by the plaintiffs after they made the second purchase in December 1943, but the loss, when it did occur, is not shown to have been on land owned

118 C. Cls.

Opinion of the Court

solely by the plaintiffs at the time nor can it be apportioned as to that which they owned.

14. The flood in April and May 1944 caused more of the plaintiffs' land to cave into the Kansas River. The area so lost was 13.5 acres. The floods in April and May 1945 caused very little, if any loss of land and there is no evidence that any caving or loss occurred after 1945.

15. That portion of the plaintiffs' land which was lost to the river was of a quality capable of producing an average yield of 40 bushels of corn per acre. The land was worth $100 per acre in 1944 and $153 per acre in 1948, the increase in value reflecting the general rise in the prices for farm land.

16. From 1943 to 1946, the topsoil on approximately 60 acres of the total land here in question was washed away in varying degrees although by 1949 the evidence established that the land had the same amount of topsoil as low, riverbottom land elsewhere in the area and would grow a crop with proper management in those years when the land is not flooded. An ordinary flood would reduce the crop yield at least one-half. How much of this top soil loss occurred in 1943 before the plaintiffs owned all of the land from which topsoil was removed by floods and how much in 1944 and subsequent years is not established by the evidence. The general elevation of the land in 1948 was approximately the same as the 1930 elevation.

The court decided that the plaintiffs were not entitled to

recover.

a

HOWELL, Judge, delivered the opinion of the court:

The plaintiffs sue to recover the amount of $14,440 representing damages for the loss of certain of their lands and damage to portions thereof alleged to have been the result of the defendant's construction of a levee on the south bank of the Kansas River for the protection of a pipe line intake leading to the Sunflower Ordnance Plant.

The land in question is located in Leavenworth County, State of Kansas, on the north bank of the Kansas River. The course of the river as it approaches plaintiffs' land is

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Opinion of the Court almost directly north to a point in the adjoining township where, after making a sharp turn to the east, it flows easterly for approximately one-half mile, then slightly south by east. From the point where the river turns southeast, it flows past the plaintiffs' land. The Union Pacific Railroad follows the north bank of the river in its easterly course until a point slightly beyond the southeasterly turn of the river; it then follows about the same southeastern direction as the river. The land which is the subject of this case lies between the apex formed by the river and the railroad on the west, the eastern boundary of the plaintiffs' land on the east, the river on the south and the railroad right-of-way on the north. The land lying within this area represents two tracts, one of which was purchased by plaintiffs in 1925 and the other in December 1943.

Several miles south of the Kansas River the defendant had, prior to 1943, constructed the Sunflower Ordnance Plant. A portion of the water supply for this plant is obtained from the Kansas River from a pipe line, the intake of which was situated on the south bank of the River approximately one-quarter of a mile downstream from the eastern boundary of plaintiffs' land. When, in June 1943, a flood of the Kansas River was threatened, the defendant built an earth levee on the south side of the river for the protection of its water pipe line and a road leading to the intake structure. Apparently this levee was hastily constructed of natural earthen materials and ran in a westerly direction until it approached the sharp turn of the river, generally following a contour several hundred feet back from the river. As it approached the sharp turn of the river it turned in a southwest direction for a short distance. At the east end of the intake structure a much shorter levee was built, running in a southeasterly direction. The levee, which was in place before the high stages of the 1943 flood here involved, had an elevation at its base of approximately 790 feet above sea level or higher.

Prior to 1943 the plaintiffs' land located near the river was at an elevation of 780 feet. Within a short distance it rose to 785 feet, and the highest elevation between the river and the railroad right-of-way on the north was 786.7 feet. 118 C. Cls. Opinion of the Court All of the land above the elevation of 785 feet was landward, or north, of the 785-foot contour. At that time, prior to 1943, numerous trees grew on the river bank which followed practically a straight line.

The floods which caused the alleged damage to the plaintiffs' land occurred in the years of 1943, 1944 and 1945, and in each case the height of the crest of the flood was measured at a gauge maintained at the intake structure of the Sunflower Ordnance Plant. At that point the crest of the flood was at an elevation of 791.8 in 1943, 791.6 in 1944 and 791.9 in 1945. Upstream at a point about midway between the east and west boundaries of plaintiffs' land, the elevation of the crest of the flood was 793 feet in 1943, 792.8 feet in 1944, and 793.1 feet in 1945. The river was against the banks of the land at elevation 776 feet or higher for a period of 19 days in 1943, 27 days in 1944 and 42 days in 1945. During the years in question, the levee which the defendant had constructed on the south side of the river was not touched by the flood waters until elevation 790 had been reached. In 1943 plaintiffs' land was under water about 8 days and of that time it was submerged to a depth up to 5 feet for approximately 5 days when there was no water on the levee. In 1944, the land was under water 7 days and submerged to a depth of 5 feet for approximately 5 days when there was no water touching the levee. In 1945 the land was under water about 11 days and was submerged to a depth of 5 feet for 9 days when there was no water touching the levee.

In 1943 the flood was against the levee for about 342 days, in 1944 and 1945 for 2 or 3 days. At the crest of the flood in 1943 at elevation 793 plaintiffs' land was submerged to a depth of about 7.5 feet, in 1944 at an elevation of 792.8 the land was submerged to a depth of 6.9 feet, and in 1945 at elevation 793.1 it was submerged to a depth of 7.6 feet.

In each of the years in question, had the levee not been in place, the crest of the flood would have been about 5 inches lower, and in 1943 at elevation 792.6 feet the land would have been submerged to a depth of 7.1 feet; in 1944 at elevation 792.4, the land would have been submerged to a depth of 6.9 feet, and in 1945 at elevation 792.7, it would have been submerged to a depth of 7.2 feet.

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Opinion of the Court In each of the three years the velocity of the water over the land during the time that the water was against the levee was about 1 foot per second, and had the levee not been in place during those times the velocity would have been about .04 of a foot less per second.

Prior to 1943, during the flood time, plaintiffs' land was submerged to a depth of 5 feet before any water overflowed the south bank of the river. After the construction of the levee by the defendant, overflow of the south bank occurred only when the stage of the river was above 790 feet and the plaintiff's land was under 5 feet of water. On the occasion of floods of the magnitude of those of 1943, 1944, and 1945, the amount of flow which was prevented from overflowing the south bank was about 4 percent of the entire discharge of the river.

We turn now to a consideration of the nature of the Kansas River, its course and the nature of its banks. The river itself is an alluvial stream, one of the characteristics of which is erosion of its banks due to its meandering course, sometimes referred to as a sinuous or serpentine flow. The banks of such a stream, having been stable for many years may, after prolonged exposure and saturation due to flood conditions, suddenly collapse. In 1940, a survey made by the Army Engineers disclosed that 40 miles of the 160 miles of the Kansas River were active in various degrees of erosion.

Before the construction of the levee by the defendant there was evidence of erosion and a tendency to cave along the bank of the river just upstream from the plaintiffs' land. As early as 1930 the Union Pacific Railroad recognized that bank protection was necessary immediately above the plaintiffs' land on the bend of the river and installed jetties to prevent cutting of the bank. Plaintiffs, however, did not recognize such an eventuality and did not seek to protect their land as did the Railroad.

The 1943 flood caused part of the total land owned by the plaintiffs after December 1943 to cave into the river. The evidence does not establish the amount of land lost in 1943 or that the loss was from the land then owned by the plaintiffs. The 1944 flood caused 1312 acres to cave into the river

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