(concurring specially): I concur in affirming the ruling of the trial court in sustaining a demurrer to plaintiff’s evidence, but prefer to state my reasons as follows: The only damages sought to be recovered by plaintiff in this action were those caused by the floodwaters of 1935. The extent of this flood is summarized in the opinion. On this point, in sustaining the demurrer, the court said:
“Now, obviously, as pointed out, the plaintiff cannot recover for water getting on her land during the flood. Counsel frankly concede that there would have been water all over the land if the city hadn’t had a dump. If the city had dug a hole instead of building a dump, there still would have been water on plaintiff’s land from this flood.”
Plaintiff made no attempt to show to what extent, if at all, the floodwaters were greater on her land, or were more destructive to her property in 1935, because of the fact that defendant maintained a dump on the opposite side of the river. In this respect the case is much like Cole v. Shell Petroleum Corp., 149 Kan. 25, 86 P. 2d 740, where it was held:
“Except where there are joint tort-feasors tort is not legal cause of damage which would have occurred irrespective of tort; rule being that negligence must form what is usually called proximate cause, more accurately called efficient ánd producing cause.” (Syl. U 1.)
It is true plaintiff’s evidence was to the effect that beginning several years prior to 1935 the city had dumped material in the river and along the west bank in sufficient quantities to cause the stream of the river, which normally flowed along the west bank, to be diverted to the east bank and against her land, and that this had caused a small quantity of her land to be washed away by the normal rises of the river in each of several years. In this action no damages were sought to be recovered for those losses. While the court, as one of the reasons for sustaining the demurrer, ruled plaintiff’s action was barred by the two-year statute of limitations, and *40that question has been argued at length in the briefs, it seems to me to be rather an academic question so far as plaintiff’s right to recover in this action is concerned. In other words, had all the material of the dump been thrown into the river by the city within thirty days, say, prior to the 1935 flood, the plaintiff, under the evidence in this case, could not have recovered; for, as stated by the court, there was no showing this plaintiff would not have sustained just as much damage in the 1935 flood if the city had made a hole in the river bed.
I do not care to extend the doctrine concurred in by a majority of the court in Seglem v. Skelly Oil Co., 145 Kan. 216, 65 P. 2d 553. In my judgment that doctrine already has been extended too far.
Allen, J., joins in the foregoing specially concurring opinion.