Petitioner for ReHearing — Williams v. City of Wichita

Vv.

Orry or Wionrma, Kansas, Appellee.

Appeal from the Supreme Court of the State of Kansas

Kewnera G. Srzm

ee . . Veanon A. Strosernc -

| | Heaseer H. Stzemone

Pa Rromaxp F. Hapricka

809 Main Street

Newton, Kansas

Evauns GressMaN

_ 1780 K Street, N. W.

Washington 6, D. 0.

- Counsel for Appellant

November 8, 1963.

: :

we 4 eT

—

IN THE

Supreme Court of the United States

OcTOBER TERM, 1963

No. 132

Don WriuiaAms, Appellant,

v.

City or WicniTa, Kansas, Appellee.

Appeal from the Supreme Court of the State of Kansas

-PETITION FOR REHEARING

The Appellant herein respectfully applies for a re-

hearing of, and an order vacating, this Court’s order

of October 14, 1963, dismissing this appeal for want of

a substantial federal question. As grounds therefor,

Appellant states as follows:

The substantiality of the federal questions set forth

in the Jurisdictional Statement has been made plain

by the judicial history of this litigation. The Supreme

2

Court of Kansas expressly recognized that ‘‘the con-

stitutionality of the Act is actually the single decisive

issue of the case’? (190 Kan. at 319) and then pro-

ceeded to discourse for 24 pages in disposing of the

constitutional issues. Such a lengthy discussion is

not the mark of insubstantiality.

This voluminous response to the issues by the court

below was the culmination of a series of related cases,

all of which recognized that the substantiality of the

federal constitutional issues was so great as to war-

rant awaiting definitive resolution by the Supreme

Court of Kansas and ultimately by this Court. The

trial court itself, in the instant litigation, invalidated

the Water Appropriation Act on the basis of the fed-

eral constitutional claims and thereby established the

substantiality of those claims. And the earlier pro-

ceedings resulting in this Court’s affirmance in Bau-

mann V. Smrha, 352 U.S. 863, carefully eschewed any

resolution of the federal constitutional issues because

of their substantiality and the need for consideration

of those issues in the first instance by the Supreme

Court of Kansas. See also Williams v. City of

Wichita, 230 F. 2d 959 (C.A. 10).

Thus the full bloom of the constitutional questions

finally opened with the decision below. And so sub-

stantial were the issues there resolved and so con-

troversial were the results reached that Justice

Schroeder was compelled to begin his dissent with the

following strong language (190 Kan. at 341):

Not to be outdone by the legislature in the con-

fiseation of private property, the Supreme Court

of Kansas today upholds the corstitutionality of

the 1945 Water Appropriation Act (G. S. 1949,

82a-701, et seq.) by decreeing an established prop-

3

erty right (one which even the legislature and the

city of Wichita recognized) to be none.ristent.

Kansas decisions declaring the right of the dand-

owner to the underground water in his land to be

a common law vested property right are in-

ferentially overruled, and, in effect, the new rule

of law is given retroactive application to the time

of origin of private land titles by patent from the

U.S. Government—prior to the time Kansas was

admitted to statehood. If such arbitrary exercise

of the police power of the state withstands the

federal constitutional test of due process, the

formula has been found, and the precedent is

established, by which all private property within

Kansas may be communized without cost to the

state. [Emphasis in original.]

But the emphasis given in the opinion of the

Supreme Court of Kansas (190 Kan. at 341) and in

the Motion to Dismiss (p. 11) to Appellant’s so-called

‘right to commence an action for damages”’ as recog-

nized by the Water Appropriation Act may have

created the mistaken impression that the federal eon-

stitutional issues decided below are either eliminated

or rendered insubstantial.

If such a ‘‘right’’ can be said to exist, however, it

is indeed an empty one in light of the definitive hold-

ing of the Supreme Court of Kansas that Appellant

possesses no compensable property rights stemming

from his natural usage of underground water. A

damage action as referred to by the Act, Sees. 82a-716

and 82a-721a, relates to ‘‘damages proved for any prop-

erty taken’’ and to ‘‘damage for any injury done to his

land or to any water rights appurtenant thereto.”

Once it has been authoritatively determined, however,

that no recognizable property right has been taken, a

4

damage action cannot be said to lie for any resulting

injuries. If the City of Wichita was properly au-

thorized, in light of the federal constitutional objec-

tions, to inflict the proven damages’ upon this Appel-

lant, an action seeking recovery of such damages be-

comes completely illusory.

Indeed, Appellant has already sought in vain to

secure damages pursuant to Sec. 82a-721la. In his peti-

- tion for rehearing below, pp. 17-18, Appellant asserted

that, under established Kansas authorities,’ the Su-

preme Court of Kansas at the very least should have

remanded this case to the trial court for the award of

proven damages. This request was premised on the

well-recognized rule that sharp distinctions between

equitable and legal actions are no longer recognized and

that, even though Appellant was not entitled to an

injunction on constitutional grounds, he was entitled

to damages on statutory grounds. See Cherokee «

Nation v. Southern Kansas R. Co., 135 U.S. 641. The

summary denial of this petition for rehearing force-

fully indicated that the Supreme Court of Kansas in-

tended to foreclose any recovery of damages—despite

the protestation in its opinion that a damage action

is available.

_1The fact that there were damages to Appellant's land caused

by the City of Wichita’s diversion of underground water is un-

contested. The trial court found that the total decrease in the

value of Appellant’s land was $200 per acre, quite apart from the

decrease in the land’s productivity. See Jurisdictional Statement,

pp. 8-9.

2 See Provident Mut. Life Ins. Co. v. State Highway Comm., 155

Kan. 351, 355; Hultz v. Taylor, 163 Kan. 180, 181 P.2d 515:

McCrum v. Corby, 11 Kan. 464; Reed v. Bestleman, 97 Kan. 633,

156 P. 718.

5

Such an action, moreover, is rendered wholly inad-

equate under the provision of Kansas law (G.S. 1961

Supp., § 12-105) that limits damages to those occurring

within three months prior to the accrual thereof.’

Since Appellant’s damages, under that statutory

limitation, accrued soon after the City of Wichita first

began pumping operations in 1940, the efficacy of the

damage action disappears through a combination of

limitation periods and the policy against piece-meal

and repetitious suits for damages. See Wildin v. City

of Hutcheson, 177 Kan. 671, 282 P. 2d 377 (especially

Syllabus 3); Howell vy. City of Hutcheson, 177 Kan.

722, 282 P. 2d 373.

Nor is there any relief to be expected through any of

the administrative procedures provided by the Act.

Contrary to the contention advanced in the Motion to

Dismiss (p. 12), those procedures have been exhausted.

As long ago as May 18, 1954, the Chief Kaugineer of the

Division of Water Resources of the Kansas State

Board of Agriculture entered a final order—for pur-

poses of the Water Appropriation Act—that this Ap-

pellant had no ‘“‘vested right to the use of water for

any beneficial purpose within the purview”’ of the Act.

A copy of that order is reprinted in the Appendix

hereto. That order has in effect been affirmed and

approved by the Supreme Court of Kansas. And on

the basis of that determination, the Chief Engineer has

granted superior and exclusive usage rights to the City

of Wichita relative to the artificial pumping of the

underground water in question. Appellant is now

8 This statute was amended in 1957 to extend the three-month

period to one year. But that amendment came too late to benefit

the Appellant in any way; and it would in no event alter the

present ineffectiveness of a damage action. See dissenting opinion

below, 190 Kan. at 359-360.

<@

6

effectively foreclosed from any right to utilize the

underground water even hy artificial means;* and the

damages resulting from the destruction of his right to

the natural usage of that water have been accorded no

greater status than damnum absque injuria.

The result is that the critical constitutional issues

arising from the Water Appropriation Act are ripe

for decision now and only now. No other remedy ex-

ists which would render those issues premature for con-

sideration at this time or which would justify labeling

as insubstantial the effort to raise the issues in this

litigation. Where federal constitutional issues of sub-

stance have been raised and resolved, the existence

of other alternative remedies—particularly where those

remedies were not held below to bar resolution of the

constitutional issues—does not affect the substantiality

of those issues. Rogers v. Hennepin County, 240 U.S.

184, 188-189. Indeed, in the court below (see 190 Kan.

at 319), the City of Wichita made no claim relative

to the exhaustion of other remedies; it expressly

abandoned all issues other than those relating to the

constitutionality of the Aet. And the Supreme Court

of Kansas itself confined its decision to the constitu-

tional issues. The belated effort in the Motion to Dis-

miss to raise the exhaustion point cannot overcome the

plain fact that the. federal constitutional issues were

both decisive and substantial.

*See. 82a-7l7a of the Water Appropriation Act provides in

pertinent part: ‘‘No common-law claimant without a vested right,

or other person without a vested right, a prior appropriation right,

or an earlier permit shall divert or threaten to divert water if

such diversion or threatened diversion impairs or would impair

any vested right, appropriation right, or right under a permit

to appropriate water.’ See Jurisdictional Statement, App., p. Ila.

7

The issues themselves are of the greatest substance

and importance. As the Jurisdictional Statement

makes plain, no decision of this Court has ever held or

intimated that a State may inflict a property loss upon

a citizen without awarding him some form of just com-

pensation. Certainly the police power of the State,

upon which the Motion to Dismiss relies, has never been

held to create an exception.te the constitutional re-

quirement of just compensation. The acknowledged

losses suffered by this Appellant stand as mute refuta-

tion of any claim of insubstantiality. In our con-

stitutional way of life, public interest may require

appropriation by a State in order to conserve water

resources, but it does not require or justify expropria-

tion to the damage of the property owner. See United

States v. Gerlach Live Stock Co., 339 U.S. 725, 753.

The substantiality of the due process claims achieves

unique prominence in this case by virtue of the re-

peated representations made to this Court by the

State of Kansas that the precise property right as-

serted by this Appellant was reeognized by Kansas

and was entitled to effective protection. See Juris-

dictional Statement, pp. 15-17. If the decision below

is allowed to stand, the result is to jeopardize this

Court’s reliance on those representations, a reliance

which led this Court in the Kansas-Colorado litiga-

tion to assume that the Kansas common law gave recog-

nition to the type of property interest here asserted

by Appellant. See Colorado v. Kansas, 320 U.S. 383,

399. That fact alone justifies plenary review.

To that fact must be added the express reeognition

given by the Kansas legislature to the property right

here at stake, a recognition that was obliterated and

8

ignored by the Supreme Court of Kansas in this case.

In 1917, as the Jurisdictional Statement notes (p. 17),

the legislature declared ‘‘underground waters for all

purposes to become appurtenant to the lands under

which they flow.’’ There can be no question—certainly

none is raised by the opinion below or by the City of

Wichita—but that this legislative recognition applies

to the water of the Equus Beds, since such water con-

eededly is ‘‘underground.’’ And the statute makes

no distinction between ‘‘percolating’’ or ‘‘flowing”’

underground water; it applies to all underground water

of whatever kind, shape or description; and it recog-

nizes a property interest in such water fer all

pur poses. . ,

More importantly, in declaring underground waters

to be ‘‘appurtenant”’ to the lands, the 1917 statute

codified the argument made earlier to this Court by

the State of Kansas in the Kansas-Colorado litiga-

tion. The State had there told this Court that under-

ground water, whatever its description, ‘‘belongs to

to owner of the soil’’ and that ‘‘an adjoining land-

owner may not drain percolating water from the

lands of his neighbors, make merchandise of the water,

and sell it, and that equity will adjoin such drainage

of adjoining lands.’’ See Jurisdictional Statement,

p. 16. The Legislature subsequently agreed with this

description of rights in underground water, includ-

ing that which is percolating, by providing that such

water is “‘appurtenant”’ to the land ‘‘for all purposes”’

—thereby recognizing that it may not be lawfully

drained off for merchandising purposes by an adjoin-

ing landowner. And it was in light of that statute

and its background that the Supreme Court of Kahsas,

4

%

in State ex rel. Peterson v, Kansas State Board of

Agriculture, 158 Kan. 603, 611-612, 149 P. 2d 604,

declared t the common law doctrines respécting

ownership of underground water continue in effect in

Kansas.

‘4

_ Unquestionably, the Legislature passed this statute

for the purpose of establishing beyond dispute that

underground water of all types belongs to the land-

owner to use as he sees fit, but only on or in connection

with the land to which it is ‘‘appurtenant’’ and con-

sistent with the rights of other landowners. It was de-

signed to prevent and eliminate any judicial change

or modification—whether by judicial decision or by

judicial construction of other statutes—of the vested

property rights to the use of such underground waters.

If such property rights be injured or destroyed, the

principles of just compensation come into operation.

The failure of the Supreme Court of Kansas to

recognize this vested right and its effort to destroy

that right retroactively have created federal constitu-

tional issues of the highest moment. Unless the dect-

sion below is reviewed and reversed, our fifty States

will be constitutionally free to utilize their police

powers so as to destroy the use rights of any property

owner and to give those rights to another without re-

quiring any form of compensation or damages. Just

compensation will have become a dead concept when-

ever a legislature or court determines to read out of

existence long-recognized property rights. Such should

not be permitted to happen, at least as long as this

Court sits.

10

CONCLUSION

For the foregoing reasons, this petition for rehear-

ing should be granted, the order of October 14, 1963,

vacated, and probable jurisdiction of this appeal noted.

Respectfully submitted,

KENNETH G. SPEIR

Vernon A. STROBERG

Hersert H. SIZEMORE

RicHarp F, HRDLICKA

809 Main Street

Newton, Kansas

EUGENE GRESSMAN

1730 K Street, N. W.

Washington 6, D. C.

Counsel for Appellant |

November 8, 1963.

CERTIFICATE

\ I hereby certify that the foregoing petition for

a

“\rehearing is presented in good faith and not for delay.

Counsel for Appeliant

11

APPENDIX

Before R. V. Smrua, Chief Engineer, Division of Water

Resources, Kansas State Board of Agriculture

In the Matter of the Claim of A. B. Wiu1aMs and Others

for the Determination of Vested Rights to the

Beneficial use of water in Harvey County, Kansas.

Order

Now on the 18th day of May, 1954, the Chief Engineer

has before him for consideration the claims of A. B.

Williams, and others, as more particularly set forth in

‘*Exhibit A’’ attached hereto showing the names and ad-

dresses of said claimants and the legal description of the

respective real estate of each claimant; and also having

before him for consideration the Alternative Writ of

Mandamus in Case No. 39,358 in the Supreme Court of the

State of Kansas, and pertinent pleadings filed there;

and also having before him the Order of Determination

of vested rights for Harvey County, Kansas, as made and

entered on the 15th day of September, 1953; and also

having before him the information and data assembled by

the survey conducted by him preliminary to the issuance

of said September, 1953, Order, and being otherwise in-

formed in the premises finds as follows:

1. That the determination of vested rights as made and

entered on September 15, 1953, did not show that A. B.

Williams, and the other claimants listed in the attached

‘*Exhibit A’’, had any vested right to the use of water

for any beneficial purpose within the purview of Chapter

390 of the Laws of Kansas, 1945 (G.S. 1949, 82a-701 to

82a-822, both inclusive).

2. That pursuant to the aforecited statute all water

within the state has been dedicated to the use of the

12

people of the state subject to the control and regulation

of the state; that the Chief Engineer has no jufisdiction

or authority to determine that the claimant A. B. Williams,

or any of the other claimants listed in the attached ‘‘ Ex-

hibit A’’ are the owners of any of the water under their

respective lands, or that they and others Own such water

jointly.

3. That the Chief Engineer has no jurisdiction or au-

thority to consider or determine the extent of any exist-

ing or claimed beneficial use for domestic purposes as a

vested right.

4. The Statute provides that: ‘‘ ‘vested right’ means

the right to continue the use of water having actually been

applied . . .,’’ and consideraing that subirrigation is not

‘actual application’? under the Chief Engineer’s ad-

ministrative interpretation of the act and because the water

so used is not susceptible of measurement as to quantity of

water used and the rate of diversion thereof as con-

templated by Section 4 of the act, therefore neither A. B.

Williams nor any of the other claimants mentioned in

‘‘Exhibit A”’ attached hereto has made any actual applica-

tion of water for beneficial use in the subirrigation of

crops and other vegation upon their respective premises

within the meaning of the words ‘‘having actually been

applied,’’ within the purview of the statutory definition of

‘‘vested right’’; and that, therefore, said claimants do not

have any vested right by reason of subirrigation.

5. That neither the claimant A. B. Williams, nor any

of the persons listed on the attached ‘‘Exhibit A’’ other-

wise have any vested right for any use othef than domestic

in any of the waters of the Equus Beds in Harvey County,

Kansas.

Ir Is Trererore THE ConcLusion anv Orper of the Chief

Engineer of the Division of Water Resources of the

Kansas State Board of Agriculture that*the claimant A. B.

cl

13

Williams, and each and all of the other claimants whose

names appear on ‘‘Exhibit A’’ attached hereto, do not

have any vested right for the beneficial use of water for

the subirrigation of crops or for any other purpose, other

than domestic; that the Chief Engineer does not have

jurisdiction to make any determination of any vestéd

right for domestic purposes or for the determination of

any claim of absolute ownership in water; that the re-

spective claims of the claimants for vested rights be, and

each of them hereby are, rejected and denied.

> R. V. Smrua,

R. V. Smrha, Chief Engineer,

Division of Water Resources,

Kansas State Board of

Agriculture.

Exhibit ‘‘A”’

SE %4-30-24-2W ;

A. B. Williams, Halstead, Kansas, SE %4-19-24-2W;

S % SW %4-30-24-2W, Harvey County. (Balance of ‘list

not copied)