City of Cherryvale v. Wilson, 35065.

CourtUnited States State Supreme Court of Kansas
Writing for the CourtSMITH, Justice.
Citation153 Kan. 505,112 P.2d 111
PartiesCITY OF CHERRYVALE v. WILSON et al.
Decision Date12 April 1941
Docket Number35065.

112 P.2d 111

153 Kan. 505

CITY OF CHERRYVALE
v.

WILSON et al.

No. 35065.

Supreme Court of Kansas

April 12, 1941


[112 P.2d 112]

Syllabus by the Court.

In an action for a declaratory judgment, it must clearly appear from the pleadings that there has been an actual controversy between the parties, and just what the controversy is. Gen.St.1935, 60-3127 to 60-3132.

Where city's petition respecting realty on which water standpipe was located alleged that city informed defendants of its intention to discontinue furnishing of free water to defendants on ground that city's agreement to do so was void, and to remove water pipe on defendants' land, that defendants refused their consent, that efforts had been made to arrive at an amicable adjustment but without success, but which did not allege that defendants would take any particular action to detriment of city, there was no "actual controversy" within meaning of the Declaratory Judgment Act, and demurrer to petition was properly sustained. Gen.St.1935, 60-3127 to 60-3132.

A "demurrer" is rarely an appropriate pleading for a defendant to file to a petition for declaratory judgment. Gen.St.1935, 60-3127 to 60-3132.

A petition for a declaratory judgment should state clearly the facts out of which the controversy arose, the view or claim of plaintiff, and the view or claim of defendant, and court should be asked to adjudicate the controversy. Gen.St.1935, 60-3127 to 60-3132.

The appropriate pleading for a defendant to file in a declaratory judgment action is an admission that the controversy arose from the facts stated by the plaintiff, and that parties' contentions are correctly stated, if the defendant agrees that the matters are so pleaded, but if defendant thinks facts giving rise to the controversy are not accurate or fully stated, or that parties' contentions are not accurately stated, his answer should plead the facts and contentions as he understands them to be. Gen.St.1935, 60-3127 to 60-3132.

If defendant in declaratory judgment action pleads the facts and the contentions contrary to that pleaded by the plaintiff, plaintiff by reply should either admit those contrary contentions or deny them. Gen. St.1935, 60-3127 to 60-3132.

Normally, a declaratory judgment action is not well suited for a case in which there is a controversy as to how the contentions of the parties arose, or as to what they are. Gen.St.1935, 60-3127 to 60-3132.

1. In an action for a declaratory judgment it must clearly appear from the pleadings that there is an actual controversy between the parties, and just what the controversy is.

2. In an action such as that described in the foregoing paragraph of the syllabus, the petition is examined and it is held that the facts alleged in the petition did not state any actual controversy between the parties.

Appeal from District Court, Montgomery County; Joseph W. Holdren, Judge.

Action for a declaratory judgment by the City of Cherryvale against Frances Letitia Wilson and others, to fix and determine the rights of parties under an agreement whereby realty was deeded to city for water storage tank in return for the furnishing of water to farm by the city, and to declare the agreement to be void, and that the city had a legal right to discontinue supplying water and peaceably to enter on the land and remove its pipe-line, and confirming the ownership of the city in and to the land used for a standpipe. From an adverse judgment, the city appeals.

Judgment affirmed.

C. W. Mitchell, of Cherryvale, and Theo. F. Varner, of Independence, for appellant.

Sullivan Lomax, of Cherryvale, for appellees.

SMITH, Justice.

This was an action for a declaratory judgment. The trial court sustained a demurrer to the petition. Plaintiff appeals.

The petition alleged that plaintiff was a municipal corporation, being a city of the second class, and gave the residence of certain defendants as in Missouri and Kansas; that about the 16th day of June, 1901, plaintiff executed an agreement in writing with George H. Thompson and Alma Thompson, husband and wife, for a consideration of one dollar and the conveyance of certain rights in and to lands described by which plaintiff agreed to furnish water for general farm use and dairy purposes under certain specified conditions on and to a half section of land in Montgomery county, of which land the Thompsons were then the owners; that at that time plaintiff had no authority to enter into a contract for obtaining water for public purposes for a period of more than twenty years and the agreement was ultra vires and void under the provisions of the Laws of 1897, chapter 82, section 12.

The petition further alleged that on or about the 26th day of June, 1901, the Thompsons, being owners of the half section, for a valuable consideration conveyed to plaintiff by warranty deed a portion of the half section about fifty feet square described by metes and bounds in the petition, for the purpose of erecting and maintaining a storage tank thereon in connection with the waterworks plant belonging to plaintiff; that in the same deed the Thompsons conveyed to plaintiff the right to enter upon the half section for the purpose of constructing, maintaining and repairing a water pipe line to and from the storage tank. A copy of the warranty deed was attached to the petition.

The petition further alleged that shortly thereafter plaintiff constructed a standpipe upon the fifty-foot tract referred to and also constructed a ten-inch pipe line from the storage tank across the half section to a lake lying east of this land and for a number of years plaintiff procured its water supply from this lake and pumped the water through this pipe line over this land to the storage tank, from which point the water...

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21 practice notes
  • Anderson v. Wyoming Development Company, 2267
    • United States
    • United States State Supreme Court of Wyoming
    • December 13, 1944
    ...a demurrer is an appropriate pleading for the defendant to file to a petition for a declaratory judgment. City of Cherryvale v. Wilson, 153 Kan. 505, 112 P. 2d 111, 115. Plaintiffs, having set forth facts showing that the water rights initiated by the Development Company have been perfected......
  • Cornelius v. City of Ashland
    • United States
    • Court of Appeals of Oregon
    • February 12, 1973
    ...and ripeness are properly raised in a declaratory judgment proceeding by way of demurrer. Quoting from City of Cherryvale v. Wilson, 153 Kan. 505, 510, 112 P.2d 111 (1941), the Oregon Supreme Court in Cabell et al v. Cottage Grove et al, 170 Or. 256, 261, 130 P.2d 1013, 1015, 144 A.L.R. 286......
  • Cady v. Cady, No. 48693
    • United States
    • United States State Supreme Court of Kansas
    • July 15, 1978
    ...the parties. (Wagner v. Mahaffey, supra; Witschner v. City of Atchison, 154 Kan. 212, 117 P.2d 570 (1941); City of Cherryvale v. Wilson, 153 Kan. 505, 112 P.2d 111 (1941); Kern v. Newton City Commissioners, 151 Kan. 565, 100 P.2d 709, 129 A.L.R. 1156 (1940); Klein v. Bredehoft, 147 Kan. 71,......
  • State ex rel. Mitchell v. State Highway Commission, 36760.
    • United States
    • United States State Supreme Court of Kansas
    • June 7, 1947
    ...v. Boyd, 137 Kan. 241, 242, 20 P.2d 811, 93 A.L.R. 583; Klein v. Bredehoft, 147 Kan. 71, 73, 75 P.2d 232; City of Cherryvale v. Wilson, 153 Kan. 505, 509, 112 P.2d 111. When any legal questions become moot, judicial action ceases. State, ex rel., v. Insurance Co., 88 Kan. 9, 10, 127 P. 761;......
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21 cases
  • Anderson v. Wyoming Development Company, 2267
    • United States
    • United States State Supreme Court of Wyoming
    • December 13, 1944
    ...a demurrer is an appropriate pleading for the defendant to file to a petition for a declaratory judgment. City of Cherryvale v. Wilson, 153 Kan. 505, 112 P. 2d 111, 115. Plaintiffs, having set forth facts showing that the water rights initiated by the Development Company have been perfected......
  • Cornelius v. City of Ashland
    • United States
    • Court of Appeals of Oregon
    • February 12, 1973
    ...and ripeness are properly raised in a declaratory judgment proceeding by way of demurrer. Quoting from City of Cherryvale v. Wilson, 153 Kan. 505, 510, 112 P.2d 111 (1941), the Oregon Supreme Court in Cabell et al v. Cottage Grove et al, 170 Or. 256, 261, 130 P.2d 1013, 1015, 144 A.L.R. 286......
  • Cady v. Cady, No. 48693
    • United States
    • United States State Supreme Court of Kansas
    • July 15, 1978
    ...the parties. (Wagner v. Mahaffey, supra; Witschner v. City of Atchison, 154 Kan. 212, 117 P.2d 570 (1941); City of Cherryvale v. Wilson, 153 Kan. 505, 112 P.2d 111 (1941); Kern v. Newton City Commissioners, 151 Kan. 565, 100 P.2d 709, 129 A.L.R. 1156 (1940); Klein v. Bredehoft, 147 Kan. 71,......
  • State ex rel. Mitchell v. State Highway Commission, 36760.
    • United States
    • United States State Supreme Court of Kansas
    • June 7, 1947
    ...v. Boyd, 137 Kan. 241, 242, 20 P.2d 811, 93 A.L.R. 583; Klein v. Bredehoft, 147 Kan. 71, 73, 75 P.2d 232; City of Cherryvale v. Wilson, 153 Kan. 505, 509, 112 P.2d 111. When any legal questions become moot, judicial action ceases. State, ex rel., v. Insurance Co., 88 Kan. 9, 10, 127 P. 761;......
  • Request a trial to view additional results

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