Darlington v. Board of County Commissioners

This was a suit to enjoin the making of an embankment for use as a highway along the side of plaintiff’s land. The embankment operated to hold back upon plaintiff’s land water which overflowed the banks of the Republican river in periods of high water, and necessarily injured his farm. His testimony showed that this overflow was no more than surface-water, against which an owner affected may protect himself, and, therefore the court rightly sustained a demurrer to his evidence. The case falls fairly within the rule of Mo. Pac. Rly. Co. v. Keys, 55 Kan. 205, 40 Pac. 275, 49 Am. St. Rep. 249,…