Whose Dam is it Anyway?

Here’s a story I’ve been following for a while.  It’s interesting because of the legal dispute but also because it’s emblematic of the larger issue of abandoned and unmaintained private dams.  In this case, the dam in question is privately owned by Jerry and Georgia McGonigle of Hutchinson, Kansas.  It’s a small dam that collects runoff and protects about 42 area homes from flooding.  The problem is that the dam hasn’t been maintained over the past 30 years and now requires $1 million in repairs.  Unfortunately, the McGonigles knew none of this when the bought the dam, along with 20 acres of property and a house, for $300,000 back in 2008.  Now the city is telling them to fund the repairs, which they say will bankrupt them.  The McGonigles claim that the dam repairs should be the city’s responsibility because the dam protects downstream developments that the city approved.  They also claim they should not be held liable for 30 years of neglect because they’ve only owned the property for two.

The McGonigles’ argument hinges on a 1977 agreement made between the city and the prior owners of the property.  The agreement specified that the city was solely responsible for the engineering design and construction of improvements to the dam, but whoever owns the property is responsible for maintenance.  The dam was inspected by the city in 1993, 1997, and 1999 and all inspection reports criticized the dam for lack of maintenance.  When the McGonigles purchased the home they were neither informed of the condition of the dam nor of the agreement with the city making them responsible for maintaining it.  The question now is who is responsible for repairing the aging dam?  The current owners, the city, or the prior owners?

The McGonigles have filed a claim with their title insurance company for failing to inform them about the agreement during a routine title check performed when they bought the property.  In response, the title insurance company is suing the city, the McGonigles, and the prior owners claiming that, because the dam and lake are private, any agreements concerning their maintenance would not be reported in a title search and therefore would not be reported in a title search.

So, whose dam is this?  The McGonigles would like nothing more than for the city to take responsibility for repairing and maintaining the dam but the city seems to be insisting that it’s a private structure.  Obviously, there’s going to need to be a trial in order to sort all of this out and it’s a story I plan to keep watching.  Also, watching closely are 42 homeowners who have been informed that their homes would suffer damage if the dam were to rupture; some of whom were planning to sell their homes before this fiasco frightened away potential buyers.

20-acre parcel purchased by the McGonigles with Panorama Lake and Dam.
These subdivisions sit below the dam's spillway, which is split into two channels that empty on to two streets where excess water would flow into city storm drains.

Links:
Hutchinson homeowners surprised by $900,000 bill for dam” by Mary Clarkin
Title firm sues over dam costs” by Mary Clarkin

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