City of Ft. Scott v. Kaufman

• Citation: 44 Kan. 137,24 P. 64
• Parties: THE CITY OF FORT SCOTT v. C. KAUFMAN
• Decision Date: 07 June 1890
• Court: United States State Supreme Court of Kansas

24 P. 64

44 Kan. 137

THE CITY OF FORT SCOTT v. C. KAUFMAN

Supreme Court of Kansas

June 7, 1890

Error from Bourbon District Court.

INJUNCTION brought by Kaufman, and many others, against the City of Fort Scott, and others, to restrain the collection of a certain tax. Judgment for the plaintiffs, on June 1, 1889. The defendants bring the case here. The material facts appear in the opinion.

Judgment affirmed.

Ware Biddle & Cory, for plaintiffs in error.

J. D McCleverty, for defendants in error.

SIMPSON C. All the Justices concurring.

OPINION

SIMPSON, C.:

This case was tried in the district court of Bourbon county on the following agreed statement of facts:

"1. From and since May 30, 1888, the defendant, the city of Fort Scott, Kansas, has been and still is a city of the first class, duly organized and existing under the laws of this state.

"2. For several years prior to May 30, 1888, the said city had been a city of the second class, duly organized and existing under the laws of this state.

"3. On April 6, 1888, said city duly enacted and published the ordinance creating sewer district No. 3, as alleged in the petition of plaintiffs herein, which sewer district comprised the territory as set forth in said petition.

"4. Thereafter, and prior to August 14, 1888, said city caused a discharging sewer to be built, commencing at a point 26 feet north of the center of the alley in block 16, in Wilson's addition to said city, and running in a northeasterly direction about 2,591 feet to a point near the Marmaton river, into which it emptied, said sewer being wholly built of sewer pipe 18 inches in diameter.

"5. Said city during the same time caused to be built certain sewers within said sewer district No. 3, commonly known and called lateral sewers, built of sewer pipe of 6, 8 and 10 inches in diameter, each of which said lateral sewers connected with and emptied into the said discharging sewer mentioned in the preceding section.

"6. Attached hereto and made a part hereof is a plat of said city, showing, marked thereon in red-ink lines, the territory comprising said sewer district No. 3, and showing also in dotted lines of red ink the lines of sewer above mentioned, numbered from 1 to 5. Upon the north of the sewer district is Elm street, which is a street 45 feet wide. The other streets in the sewer district are 72 feet wide; the alleys are 18 feet wide, and the lots are 50 by 120 feet. None of the territory through which said discharging sewer passes is now or has ever been comprised within any other sewer district. The greater part of said sewer district No. 3 is upon a rocky bluff, about 50 feet above the valley of the Marmaton river. Said river runs through the city, and is the available place for discharge of sewers. At the point north of sewer district No. 3, the valley is much taken up with railroad buildings, tracks, switches, stock-yards, etc. It is a level, alluvial flat, and not used as sites for stores, or residences, or business property. The said discharging sewer runs throughout its whole distance either through Elm street, or through railroad ground and right-of-way, only about 391 feet being in Elm street. At no point does it run through any property owned by a private individual. Said discharging sewer is laid very shallow, averaging three feet underground. It is an 18-inch pipe, and it has no Ts or Ys or joints permitting connection from any source or direction except the laterals from said district. It is laid in the soft alluvial earth at little expense, and has a fall of one foot in two hundred feet, just enough to drain well; and at present it benefits no property outside of said sewer district No. 3, nor does any sewage pass into or through it from outside of said district; nor was it intended in the construction of said sewer that any property outside of said district should be benefited; nor was it built for any other purpose than to discharge the sewage of said district, except as said discharging sewer might be extended south to accommodate new sewer districts, which it is capable of doing; nor is it built or situated so that any property outside of said district can be benefited, or use said sewer, until extended as above stated. The laterals are laid deep, and are in part blasted out of hard rock, and have the following fall: No. 1, 44 feet; No. 2, 44 1/2 feet; No. 3, 47 1/3 feet; No. 4, 40 feet. The said discharging sewer runs to the best point of discharge at the Marmaton river, considering engineering difficulties and sanitary considerations, and was built pursuant to a well-considered plan, and with the possibility of being extended as above stated.

"7. Said sewers above...