The Emporia weekly news. [volume] (Emporia, Kan.) 1881-1889, 1881-12-22
THE CITY OF EHPORIA VS.. WIN. T
SODEN.

A Motion for q RehearinG In the Case
Ovsrruled in the Supreme Court.
The following is the opinion of the
court, as delivered by Judge Brewer, in
overruling the motion for rehearing
the case of the city of Emporiavs VS.. w.
T. Soden:
The city has filed a motion for a re-
hearing in this case. The point made
in the motion is this: At the close of
the opinion filed we stated that we con-
sidered the statute broad enough to
cover the condemnation of water, and
that if the city and Soden could not
agree upon the terms, condemnation pro-
ceeedings could be had. Now counsel
says that the record discloses that con-
demnation proceedings were in facthad,
and ask what more could the city do.
The trouble with those proceedings is
that there was no condemnation of the
water. The effect of such proceedings
is to pass no more title; no greater inter-
est than an ordinary deed would pass. In
this case the city both condemned the
tract of land upon the banks of the Cot
tOnwood, and received from the owner
a voluntary deed. The condemnation
proceedings gave them no more right or
interest in the land than did the deed they
received. It is true that the land taken and
bought extended to the middle of the
channel, and TO that extent constituted
the city arlparian owner, but no riparian
owner has a right to divert the flow of
q stream. Bragunier, the former own
er, may have owned the land bordering
upon the mill pond for years. but such
ownership of that land gave him no
right TO drain the pond or divert the
flow of the stream to the destruction or
injury OF Soden'S water power. The
city succeeded to Bragunier's rights,
and nothing more; it could not take a
drop of water from that pond above
what Bragunier had a right to take; it
could not reduce SOden's water power q
particle more than Bragunier could.
If the city wishes to take water from
that pond TO the damage of Soden's Wa
ter power, and desires 10 take il by con-
demnAtion proceedings, the commission
ers appointed must value the power so TO
be taken and the damage done by so
taking, to SOden. Then If he is dissatIs
ned with their award he can appeal to
the district court, and the case will
there be tried before 8 Jury. The city,
in taking water from q stream, is sub
ject to the same obligation to compensate
the lower riparian owners that an indi
vidual would be. If it destroys the
natural flow Of the water to the injury
of such owners, il must compensate
them therefor. The trouble with the
condemnation proceedings had was that
that they did not purport 10 condemn
the right of diverting the water from
the Cottonwood river, and nothing passes
by such proceedings except what is speci-
fled therein. By condemning one piece
of property no right is acquired TO an
other. and the right TO divert the flow of
4 stream is not right incident To
riparian ownership. 1t is separate and
independent property, and if the city
seeks 70 condemn that il must have a
special condemnation of it The motion
for q rehearIng will be cverruIed All
the Justices concurring
BREWER, ].
A true copy. Attest:
c. j. BowN,
Clerk Supreme Court