Atchison Street Railway Co. v. Nave

38 Kan. 744

• Court: Supreme Court of Kansas
• Decided: January 15, 1888
• Status: Published

Opinion

The opinion of the court was delivered by

Johnston, J.:

Two principal questions are brought up by this proceeding for our consideration and decision. The first relates to the objection of misjoinder, and arises on the order overruling the demurrer alleging that several causes of action and several parties plaintiff were improperly joined, and also in rendering a single judgment in favor of all the plaintiffs upon what are termed independent causes of action. It is argued that the obstruction of access to the Nave & McCord building, which was adjoining and north of the Moulton building, in no way affected the use of the latter, and that the threatened nuisance or obstruction to the Moulton building would not have been an interference with the use and enjoyment of the Nave & McCord property. As a general principle, several plaintiffs having distinct and independent causes of action against a defendant cannot unite in a suit for the separate relief of each. The code provides that where several persons have an interest in the subject of the action and in obtaining the relief demanded, they may join as plaintiffs, (sec. 35;) and also—

“When the question is one of common or general interest of many persons, or when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.” (Sec. 38.)

1. .ioSdS'o'T plaintiffs. The threatened injury or nuisance complained of here is one that is common to all the plaintiffs, and all have a general interest in the relief demanded. In fact, the case falls fairly within the decision of Palmer v. Waddell, 22 Kas. 352. There the defendant erected an obstruction on a natural water-course, causing the water to overflow and injure the land of the plaintiffs. Although the several plaintiffs were the owners of separate and distinct tracts of land, it was ruled that the overflow was a common injury to all the plaintiffs, and the common interest which they had authorized them to join in a suit as plaintiffs to restrain the nuisance, The same principle is announced in the case of Jeffers v. Forbes, 28 Kas. 179, where it is said that the owners of different tracts- of land may unite in a single action to abate a common nuisance.

The next point is, that the findings do not sustain the judgment that was rendered. That depends on whether the plaintiffs would suffer an injury special and peculiar to themselves by the threatened nuisance, and also whether the defendant

railway company had any authority or right to construct a railroad in front of their premises. The findings of fact made by the court, which have been stated and need no repetition, sufficiently show, we think, that the injury resulting from the obstruction of the street is one that is special and peculiar to the plaintiffs below and independent of and different from the general injury to the public. The railway company, however, had no right to occupy the street or construct a railroad on the proposed route.

2 street railway privilege;’ muted ume. While the fee of the streets is in the county, the control of the same in the interest of the public is placed in the city; and before street railways can be built or operated the privilege must be obtained from the city authorities. (Atchison Street Rly. Co. v. Mo. Pac. Rly. Co., 31 Kas. 667; 2 Dill. Mun. Cor., § 724.) It appears that in December, 1881, the mayor and council of the city of Atchison by ordinance granted to the Atchison Street Railway Company the right to build on the street in question at any time within six months from the taking effect of the ordinance. It seems that this privilege was not used, and in May, 1882, another ordinance wasjpassed by the mayor and council authorizing the company to occupy the street, and build its railway at any time within six months after the taking effect of that ordinance ; and by both' ordinances it was provided that, if the company was interrupted or hindered by an action at law or judicial proceedings, the time of such hindrance or interruption should not be deemed a part of the period in which the company was allowed the privilege of constructing its road. The company did not avail itself of the privilege granted by either ordinance, and it was not hindered or prevented from so doing by any judicial or other proceeding. The case therefore stands, so far as the road in question is concerned, as if no authority to occupy the street had ever been granted to the company. 3. Occupying —termination and renewal. The contention that the privilege granted by the ordinances remains until a forfeiture is declared, is not sound. The permission conferred by the city counc-j was for a limited time, and when that time expired the privilege no longer existed. The grant is not

an irrevocable one, which continues indefinitely, to be accepted or rejected at the option of the company. The consent of the city council to occupy the street is a mere license, J # J ' aQ(J until the company has availed itself of the i;cense no contractual obligation or relation arises which requires a judicial declaration of forfeiture. Until the license is accepted and used, no right vests in the railway company, and it may be revoked by the city council; and after the time within which it may be availed of expires, the license lapses and no revocation is needed to terminate the same. The railway company or licensee cannot thereafter occupy the street or build its road thereon without a new permission from the city authorities. (G. C. Rld. Co. v. C. C. & S. Rly. Co., 63 Tex. 529; same case, 26 Am. & Eng. Rld. Cases, 114; City of Detroit v. City Rly. Co., 37 Mich. 558.) As the railway company had no authority whatever to build the proposed road, some of the questions discussed become unimportant so far as this controversy is concerned, and need not be determined here.

The judgment of the district court will be affirmed.

Horton, C. J., concurring.

Valentine, J.:

Believing that the first proposition contained in the syllabus, and the corresponding portion of the opinion, come clearly within the principles enunciated by a majority of this court in the case of Palmer v. Waddell, 22 Kas. 352,1 concur, although as an original proposition I think it is at least doubtful. As to the remainder of the syllabus and the opinion, I fully concur.