Armstrong v. City of Topeka

• Decision Date: 06 May 1887
• Parties: JOHN ARMSTRONG v. THE CITY OF TOPEKA
• Court: Kansas Supreme Court

13 P. 843

36 Kan. 432

JOHN ARMSTRONG v. THE CITY OF TOPEKA

Supreme Court of Kansas

May 6, 1887

Error from Shawnee District Court.

ACTION brought by Armstrong against The City of Topeka, to restrain the defendant from opening a street through the land of the plaintiff. A temporary restraining order was granted by the probate judge of Shawnee county. Trial at the September Term 1886.

The court found substantially that plaintiff was the owner in fee simple of the property in question, being a tract of land 224 feet by 315 feet, bounded on all sides by streets, alleys blocks and lots, regularly platted and laid out as a part of the city of Topeka; and also found that in 1869, Zenos King the owner and proprietor of seventy-two acres surrounding the land in controversy, except upon the east, where it joined the then western boundary of the city of Topeka, caused his said seventy-two acres, and also eight acres besides including this land of Armstrong, to be duly laid out in lots, blocks, streets and alleys, in substantial conformity to law, so far as mere form is concerned, and made an acknowledgment, signed by himself and his wife, in which appeared the following as a part thereof:

"It is our purpose to have said plat duly recorded, with a view to the sale of said lots; but this representation and plat are not to be construed as warranting against the rights of any person or persons concerning the whole or any part of such portion of said addition as is contained within the bounds of the red dotted lines exhibited thereon."

The said dotted lines bounded the eight acres to which Zenos King had no title.

On the 21st day of February, 1871, an ordinance was duly passed by the mayor and council of the city of Topeka, annexing King's addition to the city of Topeka. On the 15th day of April, 1875, an ordinance was duly passed, reestablishing the boundaries of said city, which ordinance included within the city limits the land in controversy in this action. On the 21st day of February, 1882, another ordinance was passed, also defining the boundaries of said city, which included within the city limits this land in question. On the 16th day of March, 1883, a large number of persons, citizens of said city, resided south and west of the land in controversy in this action, and the extension and opening of a street through the land in question was a public necessity, and proper and regular steps were taken to open said street across the land of plaintiff, provided the land was a part of the city; that since February, 1871, the plaintiff and his grantor regularly paid taxes on said property, the same having been assessed for taxes in the city of Topeka; that there is no evidence tending to show in this action that the plaintiff or his grantor at any time ever consented in writing that the land in controversy might be annexed to the city of Topeka, but at the date of the publication of said ordinance, and ever since, plaintiff and his grantor have been citizens of the state of Kansas.

Finding eighteen is as follows:

"The only question in controversy in this action is, whether the city of Topeka, defendant, at the time of the condemnation proceedings had jurisdiction to take and appropriate the land belonging to the plaintiff for a street, inasmuch as the land appropriated by said city had not at any time been surveyed and platted into lots, blocks, streets and alleys, by the proprietor thereof, nor annexed to the city of Topeka with the written consent of the plaintiff as grantor."

The court found as conclusions of law, that the city of Topeka, by its several ordinances referred to, intended to and did annex all of said King's addition to the city of Topeka, and the proprietors of said tracts have acquiesced in said annexation of their land ever since the passage of the ordinance of February, 1871, and by the acts of the plaintiff he had ratified in law the several acts of the defendant annexing and including the land in controversy, within the jurisdiction of the city of Topeka; that the proceedings of the city, in condemning and appropriating the plaintiff's land in controversy for a street, were regular in all respects, and the said city has jurisdiction to condemn and appropriate the land in question for the purpose of said street and the use of the public. New trial denied, and judgment for The City and against Armstrong. He brings the case here.

Judgment reversed.

Wm. P. Douthitt, and C. M. Foster, for plaintiff in error.

Jasper H. Moss, city attorney, for defendant in error.

HOLT C. All the Justices concurring.

OPINION

HOLT, C.

The principal question to be considered is, whether this tract of land owned by the plaintiff is a part of the city of Topeka. If it is answered in the affirmative, then the judgment of the district court must be affirmed. Under the findings of fact we learn that one Zenos King laid out and platted his own land with the land in controversy, which he did not claim to own, as King's addition to the city of Topeka, and...