304 P.2d 473
No. 39,954Supreme Court of Kansas
Opinion on rehearing filed December 8, 1956.
SYLLABUS BY THE COURT
Appeal from Finney district court; C.A. SPENCER, judge pro tem. Opinion on rehearing filed December 8, 1956. Original opinion clarified. (For original opinion of reversal see Wolf v. Second Drainage District, 179 Kan. 655, 298 P.2d 305.)
Daniel R. Hopkins, of Garden City, argued the cause and Ray H. Calihan and Ray H. Calihan, Jr., both of Garden City, were with him on the briefs for the appellant.
T.M. Lillard, of Topeka, argued the cause and O.B. Eidson, Philip H. Lewis, James W. Porter, Charles S. Fisher, Jr., an E. Gene McKinney, all of Topeka, and Dale H. Corley an Clyde P. Daniel, both of Garden City, were with him on the briefs for the appellees.
The opinion of the court was delivered by
The opinion reversing the judgment of the trial court in this case was published June 9, 1956. (See Wolf v. Second Drainage District, 179 Kan. 655, 298 P.2d 305.) The petition of appellee for a rehearing was granted. The appeal was again argued October 29, 1956. Various holdings in the opinion were argued to be wrong. Amongst these was an argument that the original opinion held the plaintiff could not recover for damages to his land on account of defendant’s deepening the original water channel. We did not intend so to hold. The decision reversing the judgment of the trial court is adhered to. The opinion is clarified, however, so that the third syllabus shall read:
3. SAME — Maintenance — Cleaning Channel — Owner Not Entitled to Compensation. Where a drainage district properly organized entered upon the land of plaintiff and dug a ditch along the channel of a watercourse, under the facts and circumstances stated in this opinion, the plaintiff landowner may recover damages only for the land taken outside the channel of the watercourse and damages on account of deepening the watercourse.
The language of the opinion is clarified in conformance therewith so that it may read:
It may, however, be compelled to pay for land taken outside the natural watercourse and for damages resulting from deepening it.
Any language in the original opinion in conflict with this is withdrawn.