Property owners “want out” after city declines to address railroad drainage

Josiah Twitchell, left, his wife Cierra Twitchell, right, and their daughter, Evangelia stand in a neighbor's yard near the train tracks. Those neighbors also have trouble with water getting in their yard. Wendy Nugent/Newton Now

By Adam Strunk

Feel free to flood your neighbor’s yard for weeks on end in Newton.
As long as you don’t block a “delineated water course,” you should be fine.

The Newton City Prosecutor’s office has declined to move forward with legal proceedings against BNSF for drainage issues caused by the confluence of the BNSF and K&O railroads for houses near Eighth and High according to a disposition memo.

This was tough news for owners regularly affected by the water back ups.

“I’m kind of going through a grieving process after hearing the news today,” Cierra Twitchell said. Twitchell and her family live in a home with its yard continually flooded by water back-up and have to run two sub pumps to keep their basement from flooding. She said she had placed hope in the city after having the case turned down by a non-profit legal firm Kansas Legal Services. Newton Now left a message with the group asking about the case on Monday but had not had a comment returned by press time.

Months prior, a story in Newton Now highlighted how the confluence forms a triangle and blocks the flow of water, which drains underneath the railroad and directly into the area. With no real drain – although a superficial drain cover was present – the area backs up, sometimes for weeks at a time, into neighboring properties yards.

Recent rains have kept the properties as wetlands.

Norman Busenitz, whose yard is regularly underwater, said he did have the chance to see the ground for a little bit in May.

A report submitted by City Engineer Alex Lane, along with a suggestion of possible legal proceedings against the railroad defined the issues.
“The water backs up to an extent that the two residence’s yards are inundated with secondary structures submerged,” it stated. “If the standing water were able to drain away from the residence and not allowed to sit for several days, it is reasonable to think that the basement flooding issue could be helped, if not solved.”

City zoning law prevents property owners from obstructing a water drainage easement or delineated water course.

In an email exchange, City Prosecutor Mat Mullen noted that the property in question has utility easements, but not drainage easements. He then asked Lane his opinion on whether the property was a delineated water course.

Lane stated that ‘water course’ meant any body of water included, but not limited to lakes, ponds, rivers, streams and bodies of water delineated by the city.

“I do not think it rises to the level of water course as to be limited to permanent and intentional bodies of water,” Lane stated.

After that explanation, Mullen declined to move forward against BNSF and while water backed up, a water easement or delineated water way was not being blocked and in turn, the blockage did not violate city code.

It was not the news Twitchell was hoping to hear.
“I’m currently in a rats nest and I can’t get out,” she said. “After I got the information that we were denied, it started raining. The culvert’s full again. I’m done. I figured there’s two things. I can’t rely on the city. I can’t rely getting stuff done for myself. I’m to the point I’m about to give up.”

She said she’s now wondering if there’s a way she can do dirt work to install drainage to deal with the backup caused by the railroad intersection.
“My brain has been jogging about what we can do with the city. I could possibly get permission to put in pipe to drain water into the street. I need something. We want out. “