The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1914-12-29
Right of Public to Condemn
Shunganunga Banks Here.
An INJUNCTION OF D. I. MOTE
Would Save His Gar
den From COunty's Grasp.
Other Projects in Kansas May
Be Affected by Decision.

suit which will be of far reaching
Importance in determining the power
conferred upon the drainage districts
organized under the present Kansas
law, is being tried in the second di-
vision of the Shawnee county district
court before Judge George H. Whit
comb. 1t is the Injunction suit brought
by D. T. Mote of s1a East Sixth street
against the board of Shunganunga
creek drainage district to block the
condemnation Of strip Of land on the
creek bank just south of the East
Sixth street bridge over that stream.
The real question at issue is whether
the drainage district has power to cut
away the land in question. fraction
Of an acre. for the purpose of straight
eni1g the creek where it approaches the
bridge. without compensation to Mr..
Mote, or whether he shall be allowed
damages which he claims to approx
mate $1,000. Representatives of the
drainage district hold that the land in
question is subject to overflow and IL
a part of the creek bed. Mr.. Notes
real estate title makes him owner of
the property to the center of the
creek.
History Of Case.
In the past few years. in the develop
ment of the Shunganunga creek drain
age project through the eastern part
Of the city, no less than seven cut offs
have been made while the whole creek
bed has been cleared of standing and
fallen timber and other distractions
until the fall of the stream during flood
has been increased from one foot per
hour to four feet per hour. The recon-
mendation by engineers to straighten
the stream directly above the East
Sixth street bridge was ignored when
the work was first undertaken. but has
since been found desirable as the cur
rent strikes the bridge at an angle.
When 1t was seriously proposed several
months ago to cut away the s1oping
ground on the east bank of the stream.
the owner obtained a restraining order
Injunction.
Court Inspected 1t.
Monday afternoon Judge Whitcomb
personally visited the ground and
with the attorneys in the case inspect
ed the proposed cut. This morning
the two sides continued submitting
the facts in the case. 1t has been
shown by the attorneys for Mr. Mote
that the creek bank has been used for
gardening purposes and that it pos
sesses a real value which ought not
be confiscated for the public's ute
| without compensation. The attorneys
for the drainage district base their re-
sistance upon the claim that the
ground is in reality a part Of the
streams bed over which the public
has a natural right to exercise free
control under the states drainage
laws.
Should the decision of the suit turn
in favor of the property owner and
establis', his right to monetary dam
age for the use Of the land, the deci-
sion will probably affect other drain
age projects in Kansas One OF these
is an extensive one in Jefferson coun-
ty where the channel of-the Grass
no ,pe1' is being Strengthened. Should
the right of adjoining property own
ers to claim damages in cases similar
to the Topeka case be established, the
additional expense of the project. say
engineers, would probably prevent it's
execution at this time.