City of Emporia v. Humphrey

299 P. 950, 133 Kan. 176, 1931 Kan. LEXIS 39

Opinions

The opinion of the court was delivered by

Harvey, J.:

In a motion for rehearing defendant quotes the last paragraph of the opinion of the court, and says:

“Under this order .... it will become the duty of the trial court, if it finds that the building encroaches upon Commercial street so much as an. inch, to order such encroachment abated within a reasonable time. . .

We did not understand the case to deal with a situation in which the encroachment would be found to be so small in extent, and possibly that feature was not given as much attention as it should have received. We did have that possible situation in mind in writing syllabus 3, where it was held that when the governing body of a city determines that an encroachment upon a street should be removed, the court should not review the prudence of that determination unless it is charged and shown to have been arbitrary, capricious, or not made in good faith. The point was briefly discussed in the opinion (132 Kan. 687, 297 Pac. 712). If the encroachment of a permanent building upon a street were not more than an inch’ a court might very well say, as a matter of law, that the determination of the governing body of the city that it be abated was arbitrary and unreasonable; but this could not be said if the encroachment is substantially three feet, as contended by the plaintiff in this action. We are not called upon in this case to determine whether an order to- abate an encroachment of one, two or three inches would be arbitrary and unreasonable because of the slight extent of the encroachment; while one of a greater extent would not be unreasonable. Those matters will be determined if and when presented. In arguing this point defendant mingles with it the argument, heretofore considered, on the question of the estoppel of the city. We held that estoppel does not operate against the plaintiff in this case, and we have no disposition to modify our holding on that question. Other points argued in the motion for rehearing have been fully considered and determined. It is unnecessary to. enlarge upon them here. In view of the point first above discussed, and with the hope of avoiding confusion on tile new trial, the closing part of the opinion is modified so as to read:

“If the finding is that the building does not encroach upon the street, judgment should be for defendant, but if the finding is that the building does encroach upon the street, judgment should be that the encroachment be abated within a reasonable time, unless the extent of the encroachment is so small that the court can say, as a matter of law, that the determination of the governing body of the city that it be abated is arbitrary and unreasonable. It is so ordered.”

The motion for a rehearing is denied.

Sloan, J., not participating.