Blanding v. City of Las Vegas

• Decision Date: 25 September 1929
• Docket Number: 2833.
• Citation: 280 P. 644,52 Nev. 52
• Parties: BLANDING et al. v. CITY OF LAS VEGAS et al.
• Court: Nevada Supreme Court

280 P. 644

52 Nev. 52

BLANDING et al. v. CITY OF LAS VEGAS et al.

No. 2833.

Supreme Court of Nevada

September 25, 1929

Appeal from District Court, Clark County; Wm. E. Orr, Judge.

Action by H. Blanding and others against the City of Las Vegas and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

This action was brought to enjoin the respondents from vacating a portion of a certain street in the city of Las Vegas. Demurrers interposed to the amended complaint were sustained by the court, and the plaintiffs in the court below appellants here, were given ten days to again amend the complaint. Upon their failing to amend within the time designated, judgment was entered in favor of defendants, for their costs, and dissolving the restraining order theretofore issued. The appeal is taken from this judgment and also from the order sustaining the demurrers.

The amended complaint, which will hereinafter be referred to as the complaint, alleges that that portion of the prolongation of Main street, 286 feet south of the southeast corner of Main and Garces streets, in the city of Las Vegas, Clark county, Nev., to the common corner of sections 3 and 4 township 21 S., range 61 E., M. D. B. and M., is, and was at all times herein mentioned, a public street about 80 feet in width in the city of Las Vegas, in common use by the public as a street; that at a meeting held on or about the 5th day of August, 1926, the board of county commissioners approved a certain plat of South addition to the city of Las Vegas which said plat was then and there presented by the defendants W. E. Hawkins and Leo McNamee and so approved at their special instance and request, and that thereafter, to wit, on or about the 13th day of August, 1926, said plat bearing the approval of said board, attested by the signature of said defendant W. B. Mundy, as mayor pro tem, was filed for record in the office of the county recorder of said Clark county; that said South addition, as shown on said plat adjoins that portion of the prolongation of Main street on the easterly side thereof; that as a part of said proceedings said board of county commissioners, at the special instance and request of said defendants W. E. Hawkins and Leo A McNamee, ordered that said portion of the prolongation of Main street (hereinafter referred to as the present street) be vacated to take effect upon the construction of the street (hereinafter referred to as the proposed street) as outlined in said plat, along Main street as designated on said plat; that the recorded minutes of said meeting relating to said approval and order of vacation are in words and figures as follows: "At this time W. E. Hawkins and Leo. A. McNamee appeared before the Board and presented for the approval of the Board the plat of the proposed South Addition to the City of Las Vegas. After due consideration of the matter it was ordered upon motion of Commissioner Elwell, seconded by Mayor Hesse, that Mayor Pro Tem W. B. Mundy be, and he is hereby directed to approve said plat and the City Clerk is hereby directed to attest the signature of the said Mayor Pro Tem, and it is further ordered that that portion of the prolongation of Main Street commencing at 286 feet south of the southeast corner of Main and Garces Streets, in the City of Las Vegas, Clark County, Nevada, to the common corner of sections 3 and 4, Township 21 South, Range 61 East, M. D. B. and M. is hereby vacated, same to take effect upon the construction of the street as outlined in the plat of the South Addition to the City of Las Vegas, along Main Street as designated on said plat."

That on or about the 23d day of August, 1926, certain citizens taxpayers, and owners of real property affected by the action of said board of city commissioners filed with the clerk of said board a petition protesting against the same; that said proposed street lies parallel to said present street a distance of about 80 feet easterly therefrom, and as shown on said plat is connected diagonally at the northerly and southerly ends with said present street; that the vacation of said present street upon the construction of said proposed street would require the traveling public to proceed by way of said diagonal connections along said proposed street an additional distance of about 320 feet each way of travel; that the public would, in the event of such vacation, receive no benefit whatsoever therefrom, but would suffer inconvenience, loss of time, and greater expense by reason of said additional travel; that property rights and values would be damaged and impaired; that the angle of said diagonal connection at the northerly end of said present street is 45 degrees, and that the angle of said diagonal connection at the southerly end thereof is 105 degrees; that in traveling a southerly or westerly direction at said southerly diagonal connection, it would be necessary to pass directly in front and across the path of approaching traffic proceeding northerly at said last-mentioned point, whereby, of necessity, the speed of travel would be reduced and the hazard of accident and collision would be greatly increased, particularly in the event of a fire at a point southerly and westerly from said present street, over which it would be necessary for members of the city fire department to pass in approaching the location of said fire; that about 150 motor vehicles travel each day in and upon said present street; that parallel and adjoining said present street, on the westerly side thereof, are the railroad tracks and right of way of the Union Pacific System, a railway corporation, over which said tracks and right of way said corporation daily operates its trains in the course of its regular business; that plaintiffs are informed and believe, and upon information and belief allege, that the defendant First State Bank of Las Vegas, Nev., Incorporated, is the holder of the legal title to the real property shown on said plat, but that it holds the same in trust for the benefit of certain persons whose true names are to the plaintiffs unknown and who are hereinafter referred to as the subdividers; that prior to the order of vacation the city of Las Vegas and its said board of city commissioners without consideration or benefit to the public, but to the serious inconvenience, detriment, and injury to the public, agreed with the defendants First State Bank, W. E. Hawkins and Leo A. McNamee, and said subdividers, that said present street if and when vacated, as aforesaid, shall be added to a strip of land 80 feet in width adjoining said present street on the easterly side thereof, and said land so combined shall be subdivided into lots, having a depth of 160 feet adjoining said proposed street on the easterly side thereof and said railroad right of way on the westerly side thereof, as shown on said plat; that said present street as a part of said lots shall be and become the property of said subdividers, and said lots as such be sold as industrial sites at much higher prices, to wit, $18,000 more than could be obtained for that portion of said lots lying between the present street and said proposed street, as shown on said plot; and that the proceeds from said sale or sales shall be kept and retained by said subdividers for their express use and benefit; that said order of vacation was made pursuant to said agreement, and for no other purpose; that one or more of said lots, including a portion of said present street, have been sold pursuant to said agreement; that said present street and said proposed street are located in a depression below the surface of the surrounding land, so that rainfall and flood waters flow into and upon the same; that no outlet exists for the drainage of said waters, which remain in and upon said depression until absorbed by the underlying soil and diffused by evaporation, requiring frequently a period of ten days or more; that said soil is a clay loam about five feet in depth, overlying a layer of hardpan; that at all of the seasons of the year said soil is waterlogged by water overflowing from artesian wells within a radius of one mile therefrom, which said water permeates said soil from a depth of three feet to eighteen inches from the surface thereof; that when said soil is overflowed and permeated by the waters aforesaid, it becomes glutinous and viscid, so that vehicles traveling the same become embedded and are unable to proceed without assistance; that surrounding land slopes upward for a distance of about three-fourths of a mile, and that said waters cannot be drained without the construction of a flume or ditch about three-fourths of a mile in length at a cost of, to wit, $8,000; that for a period of twelve years last past said defendant the city of Las Vegas has from time to time deposited in and upon said present street large quantities of gravel and gypsum, to wit, 400 yards, of the value, for material and labor, to wit, $1,200; that as said gypsum and gravel was so deposited it sank into the underlying soil and became compact, and now constitutes a solid and substantial supporting base for said present street, and that travel thereon can now proceed without difficulty or interruption at all seasons of the year and without regard to the conditions aforesaid; that the conditions obtaining with reference to said present street as aforesaid are the same as those obtaining with reference to said proposed street, and that said proposed street, for the reasons aforesaid, will not and cannot be placed in as permanent and substantial condition of repair as said present street is now without a like amount of material and labor, at a like cost, and for a like period of time; that it will be necessary to expend a like amount of material and labor, at a like cost,...