City of Kansas City v. Smiley

64 P. 613, 62 Kan. 718, 1901 Kan. LEXIS 59

• Court: Supreme Court of Kansas
• Decided: April 6, 1901
• Docket: No. 11,862
• Status: Published

Opinion

The opinion of the court was delivered by

Ellis, J.:

This action was prematurely brought. The court below properly held that the original plaintiff, Smiley, could not maintain his action, and the defendants Horstman and Kirby can have no standing in court for the purpose of contesting generally the right of a city to construct a proposed improvement, but can only be heard to complain when their personal rights are jeopardized.

In this case the city has not apportioned the cost of constructing the proposed sewer upon the real estate lying in the district, and may never do so. It has not levied any tax on the property of the intervenors, and it cannot now be known that such a tax will ever be levied. At the time this action was commenced the danger of injury to the intervenors “was too remote and problematical to warrant the granting of an injunction,” and the action, therefore, cannot be mainbained. (Mason v. Independence, 61 Kan. 188, 59 Pac. 272.)

The judgment of the district court will be reversed, and the cause remanded for further proceedings in accordance with this opinion.