Colorado Oil & Gas Corp. v. City of Topeka

411 P.2d 586, 196 Kan. 337, 1966 Kan. LEXIS 279
CourtSupreme Court of Kansas
DecidedMarch 5, 1966
DocketNo. 44,351
StatusPublished
Cited by1 cases

This text of 411 P.2d 586 (Colorado Oil & Gas Corp. v. City of Topeka) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Colorado Oil & Gas Corp. v. City of Topeka, 411 P.2d 586, 196 Kan. 337, 1966 Kan. LEXIS 279 (kan 1966).

Opinion

The opinion of the court was delivered by

Kaul, J.:

This was an action to enjoin the City of Topeka from collecting an assessment levied upon lots 9 and 10, Sunnymede, Second Addition to Topeka. A special assessment was made by the city to defray the cost of paving a block of Randolph Avenue Immediately south of 29th Street, upon which the lots leased by appellant abutted. From an adverse judgment in the district court appellant has perfected this appeal.

The appellant, plaintiff below, is the lessee of lots 9 and 10, Sunnymede, Second Addition to Topeka, under a long term lease which provides that lessee shall pay all special assessments on said property. Lot 10 is located at the southeast comer of the intersection of Randolph and 29th Street, abutting Randolph on the west and 29th on the north. Lot 9 lies immediately to the south of lot 10.

[338]*338On March 3, 1964, the City Commissioners enacted ordinance number 11253 levying a special assessment upon the tracts of land abutting on both sides of Randolph Avenue in the first block south of 29th Street for paving. The paving project was designated as 1961 Paving Project No. 11, Rlock 7. The benefit district encompassed by die ordinance included lots 1 through 10, inclusive, on the east side of Randolph Avenue, Sunnymede, Second Addition, of which there is no complaint, and included a tract of land on the west side of Randolph Avenue to a varying depth, calculated under the provisions of G. S. 1949, 12-606, and running to a depth equal to that of the assessment district on the east side of Randolph Avenue at all points. The city made an assessment on the theory that G. S. 1949, 12-606, now K. S. A. 12-606, was the applicable statute in that the land involved was partially platted land, i. e., that abutting on the east side of Randolph platted, that abutting on the west unplatted. The appellant contended the land abutting on the west side of Randolph Avenue was platted and that the assessment should have been made under G. S. 1949,12-601, now K. S. A. 12-601.

The trial court found that K. S. A. 12-606 was the appropriate statute to be applied in drawing the assessment district under the facts and circumstances of this case.

In arriving at its conclusion the trial court stated that neither statute was clearly applicable and that the city had made an educated guess in using the second portion of 12-606, supra, which appeared to be the most nearly appropriate and the most equitable.

The parties submitted an agreed statement of the record on appeal. However, on oral argument to this court it was pointed out by the appellee’s attorney that an error had been made in both the agreed statement and in the findings of the trial court in describing the land abutting Randolph Avenue on the west as block “C” Sunnymede Second Addition. The statement of appellee’s attorney was not objected to by appellant’s counsel. According to the plat (Exhibit “A”) submitted as a part of the record the tract immediately abutting Randolph on the west is not identified as either a block or lot and is merely designated as “park dedication.” It will be referred to herein as “park tract.” Shunganunga Creek runs from south to north through the land in question separating Rlock “C” Sunnymede Annex on the west from the park tract on the east. [339]*339The park tract comprises the land between the west line of Randolph Avenue and Shunganunga Creek. It is 142 feet in width on the north, or 29th Street end, and 122 feet in width on the south end. It is not a part of Sunnymede Annex subdivision. The block “C” referred to lies immediately west of Shunganunga Creek and is approximately 50 feet in width. It is incorporated in Sunnymede Annex. Block “A” Sunnymede Annex adjoins block “C” on the west and in turn is joined on the west by block “A” of Sunnymede subdivision. A plat of the area under consideration is attached for the convenience of the reader. The appellant contends that the park tract abutting on Randolph is platted land and should be joined with blocks “C” and “A” of Sunnymede Annex, block “A” of Sunnymede Subdivision and be considered as one block for the purpose of drawing a middle of the block assessment under 12-601, supra. The total distance between Randolph and Oakley Avenues is 1229.08 feet. An assessment to the middle of the block, as urged by appellant would create an assessment district of 615 feet on the west side and an assessment of approximately 122 feet on the east side of Randolph Avenue.

We first note the statutes involved. K. S. A. 12-601 provides:

“Whenever any street or avenue in any city shall be graded, regraded, paved repaved, curbed, recurbed, guttered, reguttered, macadamized, remacadamized, or otherwise improved, the cost of such improvement shall be paid by and assessed to the property on each side of said street or avenue to the middle of the block.”

K. S. A. 12-606 provides:

‘Where any of the improvements specified in this act are to be made upon streets or avenues, and the pieces of land abutting on such improvements shall not be divided into lots or blocks, the assessments for such improvement shall be made on the piece or pieces of ground adjoining such improvement or through which the same may be located to the distance of 300 feet from the street or avenue upon which such improvements are made extending along the street or avenue the distance improved or to be improved: Provided, That where the street or avenue to be improved runs partially through platted ground and partially through unplatted ground, the assessments for the payment of the cost of the construction of the improvement on the street or avenue running through the unplatted ground shall be levied on the lots and pieces of ground along said street or avenue on either side thereof, to the same distance on either side of said street or avenue as the levy is made where the street or avenue to be improved runs through platted ground: Provided, That in no case shall be (sic) the benefit district extend more than half way to the street or public highway parallel with and next to the public ground to be improved.”

[340]*340The statutes reveal three methods for the establishment of a benefit district to be assessed for the costs of street improvements. If all abutting land is platted or divided into lots or blocks the assessment shall be made to the middle of the block on each side of the street or avenue under 12-601, supra.

If the abutting land is not divided into lots or blocks then the assessment shall be made to a distance of 300 feet on each side of the street or avenue under the first provision of 12-606, supra.

If the proposed improvement was partially through platted and partially through unplatted ground then the assessment shall be made to the same depth on the unplatted ground as on the platted limited to half the distance to the next parallel street or highway under the second provision of 12-606, supra.

A twofold issue is developed by the contentions and arguments of the parties. The appellant contends the park tract is platted land and should be joined with all of the other described tracts creating a block running from Randolph to Oakley Avenues, one-half of which would be assessed under the application of 12-601, supra.

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Related

Bell v. City of Topeka
553 P.2d 331 (Supreme Court of Kansas, 1976)

Cite This Page — Counsel Stack

Bluebook (online)
411 P.2d 586, 196 Kan. 337, 1966 Kan. LEXIS 279, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colorado-oil-gas-corp-v-city-of-topeka-kan-1966.