Coates v. Nugent

92 P. 597, 76 Kan. 556

• Court: Supreme Court of Kansas
• Decided: June 8, 1907
• Docket: No. 15,060
• Status: Published

Opinions

Per Curiam:

A sewer was built along a street of Kansas City, Kan., running east and west, for a distance of five blocks, and its cost was charged against a sewer district (or subdistrict) consisting of the ten abutting blocks and the two blocks lying immediately east of them. Thereafter such sewer was extended one block further to the east, the cost of this extension being charged to' a further subdistrict consisting of the four half blocks surrounding the point from which .such extension was made — the east end of the sewer first built. Owners of property in this second subdistrict brought a suit for an injunction to test the validity of such proceedings.

While the right asserted is claimed under the statute, the question presented is really one of justice and fairness. The argument made in support of the plaintiffs’ contention is that, inasmuch as the property of the new subdistrict bore its proportionate share of the cost of building the sewer for five blocks, it cannot equitably be charged with more than a like proportion of the cost of the extension — that the cost of the one block extension should have been apportioned in the same way as that of the five blocks of sewer first built, and assessed against all of the first subdistrict. The difficulty with this argument is that it assumes that what is called the extension is simply in all respects one-sixth of a sewer six blocks long — that the relation of each block to the entire sewer is the same as that of every other block— that the relation of each block to the part of the sewer on which it abuts is the same as that of any other block to the corresponding part of the sewer. Of the correctness of this assumption we have no means of judging. It may be that the local topography is such that all of the twelve blocks comprising the original subdistrict were benefited by the building of the five blocks of sewer first constructed, and that the four half-blocks, and they only, were benefited by the new sewer one block long, called the extension. If so the apportionment adopted was obviously equitable, and if it' was equitable we do not understand that the plaintiffs claim there is any provision of the statute that would defeat it. The record shows nothing of the grade, or of the character of the soil, or of other conditions that might affect the matter. The situation may have been such that the council might reasonably have regarded the apportionment made as a just one, and in that case their decision is not subject to review.

The judgment denying the injunction is affirmed.