City of Norton v. Lowden

• Decision Date: 13 July 1936
• Docket Number: No. 1405.,1405.
• Citation: 84 F.2d 663
• Parties: CITY OF NORTON v. LOWDEN et al.
• Court: U.S. Court of Appeals — Tenth Circuit

84 F.2d 663 (1936)

CITY OF NORTON v. LOWDEN et al.

No. 1405.

Circuit Court of Appeals, Tenth Circuit.

July 13, 1936.

Robert W. Hemphill and W. E. Mahin, both of Norton, Kan. (D. P. Moyers, of Norton, Kan., on the brief), for appellant.

John E. DuMars, of Topeka, Kan. (Luther Burns, of Topeka, Kan., on the brief), for appellees.

Before PHILLIPS, McDERMOTT, and BRATTON, Circuit Judges.

McDERMOTT, Circuit Judge.

This controversy arises from an effort of the City of Norton to open a street at grade across the station grounds and yards of the Rock Island Railway.

Appellant here, defendant below, is a city of the second class with about 3000 people. First Street runs north and south, and the tracks of appellees run east and west. The year the railway built into the town — 1887 — First Street was vacated for one block where it crossed appellees' tracks, doubtless to provide space for station grounds, sidetracks, water cranes, and the like. The title to the vacated street reverted to the railway which owned the blocks on either side. R.S.Kan.1923, § 14 — 423.

Cities of the second class are authorized to open and extend streets, but before doing so "the city counsel * * * shall proceed to condemn the necessary lands as provided by law." Section 14 — 423, supra. The section governing condemnation proceedings provides for the appointment of three commissioners by the state district court whose duty it is, after notice and upon view, to "appraise the value of the lands taken and assess the other damages done to the owners of such property, respectively, by such appropriations." Sections 26 — 201, 26 — 202. Except as hereafter limited, these statutes authorize appellant to open or extend streets across a railway right of way. City of Wichita v. Wichita Union Terminal R. Co., 127 Kan. 855, 275 P. 171; Denver & R. G. R. R. Co. v. Denver, 250 U.S. 241, 39 S.Ct. 450, 63 L.Ed. 958; Missouri, K. & T. Ry. Co. v. Oklahoma, 271 U.S. 303, 46 S.Ct. 517, 70 L.Ed. 957.

In 1935 the city proposed to open First Street across the tracks, and procured the appointment of commissioners to assess the damage. Before the commissioners could meet, this action was brought to enjoin the proceedings. After a trial a decree was entered perpetually enjoining appellant from "appraising, valuing or condemning the property of the plaintiffs for any purpose and from extending or opening, or undertaking to extend or open First Avenue in the City of Norton through, over and across the property of the plaintiffs." This appeal is from that decree.

While a city has plenary power over streets and alleys, such power may not be exercised arbitrarily, capriciously, or in bad faith. City of Emporia v. Atchison, T. & S. F. Railway Co., 94 Kan. 718, 147 P. 1095; Denver & R. G. R. R. Co. v. Denver, supra; Missouri, K. & T. Ry. Co. v. Oklahoma, supra. Whether the needs of the city make desirable the opening of this street is a question for the determination of the legislative body of the city. United States v. Threlkeld (C.C.A.10) 72 F.(2d) 464; City of Emporia v. Atchison, T. & S. F. Railway Co., 88 Kan. 611, 129 P. 161; Fairchild v. City of Holton, 101 Kan. 330, 333, 166 P. 503; Decker v. City of Wichita, 109 Kan. 796, 799, 202 P. 89; City of Emporia v. Humphrey, 132 Kan. 682, 297 P. 712. The bill alleges that the proceeding is in bad faith in that its purpose is to prevent that part of First Street south of the tracks from being used for a building which the Seymour Packing Company proposes to erect thereon. If that were in the mind of the council, it is no evidence of bad faith; quite the contrary, it is evidence of ordinary prudence and foresight. If the need to open First Street were not immediately urgent, the increase in traffic and the growth of the town might well require its opening in the not distant future. The construction of a large building in the vacated street would make the opening of the street in the future very expensive if not prohibitive. It is no evidence of bad faith or arbitrary conduct that the city authorities decided to open the street now at nominal cost rather than wait a few years and open it at great cost. The trial court made no finding of bad faith on this account, and the proof warrants no such finding by us. True, the court did find that the traffic requirements were not such as to justify opening the street; but the physical facts as well as the opinion evidence disclose clearly that the desirability of opening the street is at least fairly debatable. That being so, the decision is for the city council and not the court. The decree cannot rest on the ground that the action of the city is arbitrary or capricious or in bad faith.

The decree finds its main support in the finding that part of the property sought to be condemned is now devoted to a public use, and that to subject it to the proposed use would substantially destroy or materially interfere with the present public use. The trial court found:

"That if the property of plaintiff should be condemned and First Street projected across the tracks, grounds and premises of the plaintiffs, the said property would be greatly and irreparably damaged and injured, and the use thereof seriously and permanently impaired and would result in the obstruction of, interference with, and delay to freight and passenger trains in interstate commerce."

The power to take private property for public use inheres in the sovereign, is essential to the public welfare, and can neither be contracted away nor surrendered. It applies to property already devoted to one public use. Georgia v. Chattanooga, 264 U.S. 472, 480, 44 S.Ct. 369, 68 L.Ed. 796. The sovereign may condemn a right of way for streets across a railway right of way. Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979; City of Osceola v. Chicago, B. & Q. R. Co. (C.C.A.) 196 F. 777. However, statutes delegating to agencies of the state — municipalities, railroads, etc., — the right of eminent domain in general terms, do not authorize such agencies to condemn property already devoted to public use, if such condemnation will substantially destroy or materially interfere with the present public use. Power to destroy or materially interfere with an existing public use must be found in a specific authorization of the legislature.¹ On the other hand, if the second public use does not substantially destroy or materially interfere with the existing public use, property may be condemned for the second public use under a statute conferring the power of eminent domain in general terms. The authorities are numerous. Many years ago Jud...