Showalter v. Southern Kansas Railway Co.

49 Kan. 421

Opinion

Opinion by

Simpson, C.:

At the time this action was commenced, the plaintiff in error, Florence M. Showalter, was the owner of the west half of block No. 2, in Myers’s addition to the city of Wellington, being a piece of ground 305' feet long from north to south, and 150 feet wide from east to west. At the time of the trial the plaintiff in error, with her husband, had resided on the half block for over 12 years. Their dwelling-house fronted on and was located about 45 feet from First street, that ran east and west along the northern boundary of the half block. First street was a part of the original town-site of Wellington, entered on behalf of the occupants by the probate judge of Sumner county. A plat was made by the probate judge laying the town-site off into blocks, lots, streets, and alleys, and the same was filed for record on the 13th day of July, 1872. First street separated the town-site from the land of E. K. Myers that was located immediately south and adjoining that part of the town-site. On the 28th day of October, 1872, Myers filed a plat of an addition to Wellington abutting on First street. The west half of block No. 2, in such addition, was purchased from Myers by Mrs. Showalter, who erected a dweling-house and other improvements. The defendant in error railway company owned lots Nos. 8, 9, 10, 11, 12, 13, 14, 15, and 16, in block 95, in the city of Wellington. These lots are located immediately north of the west half of block 2 in Myers’s addition, the same' being separated by First street. On the 19th day of May, 1887, the following city ordinance was passed and approved, and was duly published:

“An Obdinanoe discontinuing and vacating First street between A street and F street, in the city of Wellington, Kas., for the purpose of granting the right-of-way to the Southern Kansas Railway Company and the Wichita & Southwestern Railway Company for the construction, operation and maintenance of lines of railroads, sidetracks, switches, second tracks, depots, freight houses and other buildings, water stations, water aqueducts or mains, material for construction and proper drains.

ilBe it ordained by the mayor and oouneilmen of the City of Wellington, Kas.:

“488. Southern Kansas and Wichita & Southwestern. (1) That the right-of-way be and the same is hereby granted jointly and severally to the Southern Kansas Railway Company and the Wichita & Southwestern Railway Company, their successors and assigns, to construct, forever maintain and operate lines of railroad, side-tracks, switches and second tracks, depots, freight houses and other buildings, water stations, water aqueducts or mains, material for construction and proper drains upon, along, over and across First street, or any part thereof, between A street and F street, in the original 'town (now city) of Wellington, in Sumner county, Kansas.

“489. Authorized to build embankments, etc. (2) That in the construction of said lines of railroad, side-tracks, switches and second tracks, depots, freight houses and other buildings, water stations, water aqueducts or mains, and proper drains upon, along, over, through and across said street, as provided in section 1, said railway companies or either of them, their successors or assigns, are hereby authorized and empowered to build such embankments and make such excavations as may be necessary and proper: Provided, always, That whenever said railway companies, or either of them, shall construct any track or tracks, switch or switches, so as to cross or intersect any of the avenues, streets or alleys of said city that are now, or may be hereafter, used as public highways, said railway companies shall, when requested by the city council of said city, immediately construct and maintain, so long as said highway shall remain, suitable, safe and convenient approaches and crossings of its said track or tracks, switch or switches, for public use and travel through and upon such avenues, streets, aud alleys.

“490. Vacation of streets; commissioners. (3) That all that part of First street between A street and F street be and the same is hereby vacated and discontinued; that W. R. Spicknall, Geo. H. Hunter, D. A. Espy, F. B. West, A. Branaman, five disinterested householders of the city of Wellington, be and the same are hereby appointed commissioners and viewers to ascertain and report damages sustained by citizens of said city of Wellington and owners of property therein, by reason of the discontinuance of that portion of said First street aforesaid, as provided in this section.

“491. Duty of commissioners. (4) Said commissioners and viewers shall meet on the 21st day of April, 1887, at 10 o’clock A. M., at the intersection of Washington avenue with said First street, in said city, and, after having taken an oath as provided by law, shall proceed to faithfully and impartially make the assessment to them submitted, and report their action in writing to the mayor and councilmen.

“492. Report to be filed. (5) Upon the finding of said report by said commissioners and viewers, and after the same has been examined and confirmed by the mayor and council, said city shall pay to the persons respectively entitled thereto, as shown by the report of said commissioners, the amount of damage awarded by such commissioners, and warrants shall be drawn as in other cases upon the city treasurer of the city for such respective sums.

“493. Railroads authorized to enter upon said street. (6) Upon the filing of said report, said railroad companies, their successors or assigns, or either of them, shall be entitled to enter upon said street vacated as aforesaid, and proceed to the construction of such railroad, side-tracks, switches, second tracks, depots, freight-houses, water stations, water aqueducts or mains, and proper drains, as may be necessary for their use and operation.

“494. Compensation of commissioners. (7) Said commissioners shall receive for their services the sum of $2 per day.

“ 495. In effect. (8) This ordinance shall take effect and be in force from and after its publication in the daily Postal Card, the official newspaper.”

At the trial it was admitted that the railroad company entered upon First street immediately north of the half block of the plaintiff in error, and laid its tracks along said streets and over the strip of land 20 feet wide, described in the plaintiff’s petition. First street was 40 feet wide at the place vacated. This action is to recover damages for the permanent use and occupancy of one-half of the land formerly known as First street, abutting the lots of the plaintiff in error on the north; the theory of the plaintiff in error being that, at the time of the vacation of that portion of First street abutting these lots, the street reverted to the abutting owners in proportion to frontage, according to the law concerning cities of the third class, passed March 8, 1871, and the act concerning cities of the second class, passed March 13, 1872, and ¶ 811, General Statutes of 1889. The railroad company claims under an exception in the second proviso contained in ¶ 811, that reads: “Except in cases where such street, avenue, alley or lane shall have been taken and appropriated to public use in a different proportion, in which case it shall revert to adjacent lots of real estate, in proportion as it was taken from them.” It is said on behalf of the railroad company, that as the street was originally dedicated from the land belonging to the occupants of the town-site of Wellington, and never was a part of Myers’s addition, it reverted in proportion as it was taken from the town-site. All being taken from the town-site,’ it all reverted to the lots platted from the town-site that abutted. We cannot agree to this construction. It seems to us that the proviso is intended to apply to cases where the city council, by the power granted it in this section in widening a street or alley, takes land from adjacent town lots, it shall revert to them, meaning the lots it was taken from, in proportion as it was taken. The city council can lay out a new street or alley. It can widen streets or alleys already laid out. In doing this it might become necessary to take a greater part of the width of a new street, or an old one that it seeks to widen, from a tier of lots on one side than on the other, and it is such cases as this that this proviso is intended to meet.

The general rule that prevails in all statutes on this subject is, that when a street or alley is vacated, the land reverts to the abutting owners in proportion to frontage. This legislation or some other statutory regulation became necessary, because our statutes vest the fee to a street or alley in the county. The fee is so vested on account of the public use, and being vested in the public, the legislature has the power to dispose of the fee when the street or alley is vacated. At common law it would revert to the owner who made the dedication, and the use was merely an easement. The general rule established by the legislature must prevail in this case unless it clearly appears that this street comes within the exception. The view we take is strengthened by the language of the provision, that seems to require that a street or alley, to fall within its operation, must have been taken and appropriated to public use. These words convey to the mind the idea that the street or alley must have been the product of the exercise of the right of eminent domain,' rather than the ordinary act of dedication of streets and alleys by the original town-site proprietors.’ They have acquired a peculiar and technical meaning by their occurrence in the constitution and statutes of the state. First street was a dedication made by a congressional town-site company, and was not a creation of the right of eminent domain. It was a part and parcel of a congressional town-site, and was not taken and appropriated for public use from town lots in different proportions. The same instrument that established the blocks and lots, with their locations, sizes and numbers, also fixed the length, breadth and location of the street. The lots were designated and numbered with reference to the street, and no part of the street was ever taken from the adjacent lots. Both the identity of the street and the lots abutting on it were established at the same moment by the filing of the town plat. Hence, we cannot conclude that the proviso applies, but the conviction grows stronger with examination that the general rule adopted by all the various statutes applies, and that one-half in width of the street abutting on the lots of the plaintiff in error reverted to these adjacent lots when the street was vacated. .

"We recommend that the judgment be reversed, and the cause remanded* with instructions to grant a new trial.

By the Court: It is so ordered.

Valentine and Johnston, JJ., concurring.' Horton, C. J., dissenting, upon the law as applied to the facts.