42-3,102. Procedure upon failure of proprietors to construct or maintain head gate; costs; attorney fees; sale of proprietors' rights to pay cost; liability of proprietors; penalty for unlawful acts. If the proprietors of any canal, ditch, conduit or other works for diverting the water of any natural source shall refuse or fail to erect at or near the head of such works the head gate required by this act, or to maintain the same in good order as hereby required, the officer having authority so to do shall, whenever necessary in order to effect the distribution of the waters of the district in conformity with the statutes and the order of any court having jurisdiction, exclude the water of such stream from such ditch, conduit or other works by filling such ditch, conduit or other works at or near the head thereof, or by cutting the banks thereof, or in such other way as to him may seem effective, having due regard to the cost thereof; and the reasonable cost of such filling or other work shall be paid by the board of commissioners of the county wherein the head of such ditch, conduit or other works may be situate, and may, together with a reasonable attorney's fee to be fixed by the court, be recovered by such county in any court of competent jurisdiction; and the judgment of the court shall be a lien upon and against such ditch, conduit or other works and the appurtenances thereof, and all right of the proprietors thereof to carry or enjoy the waters diverted or carried thereby, and shall direct the sale of such ditch, conduit or other works and the right of the proprietors aforesaid in satisfaction thereof, and such judgment may be enforced by special execution or other proper process.
No such sale shall divest or impair the right of any person entitled to the use of water from such ditch, conduit or other works by agreement with or license from the person or persons so in default, but all lawful fees and other sums of money payable by such consumer in respect to the carriage of water by means of such works shall thereafter be payable to the purchaser at such sale.
Every such sale shall be made as a sale of real estate, and redemption therefrom may be made in the manner provided by law in the case of land sold on execution.
Such proprietors so in default shall be liable for all injury and damages occasioned any consumer of water lawfully entitled thereto from such ditch, conduit or other works by the willful or negligent failure of such proprietors to comply with the provisions of this act; and if any person, without first constructing the head gate therein as required by this act, shall open any such canal, ditch, conduit or other works after the same shall have been filled by the officer having the authority to do so, or turn the water into such canal, ditch, conduit or other works after the same shall have been excluded therefrom pursuant hereto, or, having control of such works, shall knowingly permit water to flow therein after the same shall have been so closed or the water excluded therefrom as aforesaid, pursuant hereto, every person so offending shall be deemed guilty of a misdemeanor, and shall be fined in any sum not exceeding three hundred dollars, or imprisoned in the county jail not exceeding six months, or punished by both such fine and imprisonment, in the discretion of the court wherein such conviction is had.
History: L. 1891, ch. 133, art. 8, ยง 14; May 20; R.S. 1923, 42-3,102.
Structure Kansas Statutes
Article 3 - Irrigation And Irrigation Districts
42-302 Extent of appropriation; residue of waters.
42-303 Right to conduct water along natural channels and withdraw same.
42-304 Change of natural channel so as to prevent inflow into ditch or conduit.
42-306 Rights of prior appropriator of such waters.
42-309 Rights subject to eminent domain.
42-310 Right to continuance of use of water procured from carrier by contract.
42-311 Right to take water for domestic uses.
42-312 Such person responsible for injury or pollution.
42-313 Right to collect and store water.
42-315 Right of use of water subject to eminent domain.
42-316 Right of way and site for works for diverting, storing or conveying water.
42-317 Condemnation of lands for site or way.
42-318 Condemnation of land for public mill or manufactory.
42-319 Construction of work in city or town.
42-320 Abandonment of right-of-way or site.
42-321 Structures for the prevention of floods and waste; liability for damage.
42-322 Duty to maintain and supply water; damage liability for failure; contracts not affected.
42-323 Head gate, rating flume and lock; delivery of key to officer.
42-324 Structures in lieu of head gate; delivery of key.
42-325 Waste gate and tailrace where waters cause damage; discharge of water.
42-326 Procurement of waters through like works of other proprietors.
42-327 Outlets and gates for convenient delivery of water; contracts; construction of embankments.
42-328 Superintendent; duties; salary.
42-329 Distribution of water at source of supply among proprietors of works.
42-331 Statements by prior proprietors of wells.
42-332 Record of boring of artesian well; filing in other counties.
42-339 Dam or embankment as part of highway; township aid; repairs and guardrails.
42-340 Agreements as to distribution of water from works.
42-341 Agreements as to rotation of water among consumers.
42-342 Agreements between proprietors of two or more works as to rotation of water.
42-344 Agreements between proprietors injurious to other proprietors.
42-345 Certain agreements between proprietors not allowed; proceedings to annul.
42-346 Agreement for rotation of water not to affect prior rights.
42-347 Agreements for more than one season to be recorded.
42-348 Gates or barways in fences; liability for failure to close.
42-349 Bridges and viaducts; when maintained by county or township.
42-350 Same; restoration of highway.
42-351 Same; existing structures across roads; repair and maintenance; tax levy upon failure.
42-352 Bridges by owner of land for own use.
42-353 Lands saturated with seepage waters.
42-354 Same; damages ascertained under laws relating to eminent domain.
42-355 Appeal to state board, hearings; commission to fix rates for water from irrigation company.
42-358 Petition for district; contents.
42-359 Examination of petition; creation of district; form.
42-363 Officers; term; annual election.
42-365 Bonds; tax levy to pay.
42-369 Issuance of such bonds.
42-370 Sale of bonds; use of funds.
42-371 Purchase of irrigation works by district; election; payment.
42-372 Contracts for works; bids.
42-373 Bond of contractor; payment.
42-375 Reports of treasurer of board.
42-377 Tax levy by board, when.
42-378 Extension of main ditches into other counties.
42-379 Compensation of board; bonds of officers; delivery of books to successors.
42-380 Superintendent of district; term; compensation.
42-383 Same; outline map to be attached to petition.
42-384 Same; bond election may be held at same time.
42-385 Registration of bonds of district composed of territory in two or more counties.
42-386 Name of district comprising territory in two or more counties.
42-387 Certification of plat and order creating district.
42-388a Powers of districts organized under 42-357 et seq.
42-388b Irrigation districts organized under 42-357 et seq.; borrowing; bonds.
42-388e Same; mortgage liens; pledge of revenue; depreciation fund; rates.
42-388f Same; suits by bondholders; receivers; duties.
42-388h Same; invalidity of part.
42-389 Discrimination in rates unlawful; recovery of illegal payments; costs and attorney fees.
42-390 Same; penalty for excessive charges.
42-393 Penalty for failure of superintendent to deliver water.
42-394 Waste of water; penalty.
42-395 Unlawful acts affecting works; penalty.
42-396 Unlawful acts affecting works; penalty for second offense.
42-397 Repeated unlawful diversion as evidence.
42-398 Entry upon premises by officers.
42-399 Unlawful acts affecting artesian well; penalty.
42-3,100 Closing head gates for failure to construct rating flume or measuring device.
42-3,103 Inspection of works; condemnation and abatement.
42-3,104 Damage liability for negligent or unlawful construction of work; penalty for unlawful act.
42-3,105 Complaint by person fearing injury or damage.
42-3,106 Same; orders of district court; injunction; costs.
42-3,107 Abatement of structure as nuisance by sheriff; costs.