City of Russell v. Russell County Bldg. & Loan Ass'n

• Decision Date: 11 October 1941
• Docket Number: 35017.
• Citation: 118 P.2d 121,154 Kan. 154
• Parties: CITY OF RUSSELL v. RUSSELL COUNTY BUILDING & LOAN ASS'N.
• Court: Kansas Supreme Court

118 P.2d 121

154 Kan. 154

CITY OF RUSSELL v. RUSSELL COUNTY BUILDING & LOAN ASS'N.

No. 35017.

Supreme Court of Kansas

October 11, 1941

Syllabus by the Court.

That portion of a house situated on city street was an "encroachment" on the street, a "purpresture", and a "nuisance per se" notwithstanding that the house was built before the city was platted.

Where a part of a house was situated in city street, city could proceed by mandatory injunction to require the removal of that part encroaching on the street.

In construing a plat of a city, the general rules for the construction of deeds are applicable.

In construing a plat of city, the purpose of construction is to ascertain the dedicator's intention.

In construing a plat of a city, the instrument must be considered as a whole, all lines, figures, letters and records used on the plat and in the certificates, which are a part of it, must be considered, and the construction should be fair and reasonable.

Generally all ambiguities, in a plat of a city property, must be construed most strongly against the dedicator and in favor of the public.

An attempted reservation by the dedicator of private rights to the use of a street in a city is void and the dedication stands unimpaired by the attempted reservation.

The public is presumed to accept the grants of streets, alleys and other public grounds shown on a city plat, and no formal acceptance is necessary.

Whether owner intended to dedicate certain land in city to public use is a question of fact.

In determining whether an owner intended to dedicate land in city to the public use, courts do not look for an intention hidden in the mind of the owner, and it must be one that is manifested by his act.

Where city plat showed boundaries, course and extent of streets and lots were numbered and their precise length and width shown, as required by statute, and with an outlined and crossed area, covering a part of two lots and extending into a street on which a house was situated, with nothing more to indicate that the dedicator intended to reserve the area on the street which the house covered, trial court erred in finding that dedicator reserved for his private use that portion of the street covered by the house. Gen. St.1935, 12-401.

1. The part of a house used as a residence, situated in a street, is an encroachment upon the street, a purpresture, and is in law a nuisance per se. The fact the house was built before the city was platted is not material.

2. The city may proceed, by mandatory injunction, to require the removal of a building which encroaches upon a street.

3. In construing a plat of a city the general rules for the construction of deeds are applicable. The purpose of construction is to ascertain the intention of the dedicator.

4. Ambiguities disclosed by an examination of the plat are to be construed most strongly against the dedicator and in favor of the public.

5. The public is presumed to accept the grants of streets, alleys and other public grounds shown upon a city plat. No formal acceptance is necessary.

6. An attempted reservation by the dedicator of private rights to the use of a street is void, and the dedication stands unimpaired by the attempted reservation.

7. Whether the owner intended to dedicate certain land to the public use is a question of fact, but the courts do not look for an intention hidden in the mind of the owner; it must be one that is manifest by his act.

8. A city plat showed the boundaries, course and extent of streets, and lots were numbered and their precise length and width shown, as required by statute, G.S.1935, 12-401. Held, an outlined and crossed area, covering a part of two lots and extending into a street, upon which area a house was situate, with nothing more to indicate the dedicator intended to reserve the area, is insufficient to sustain a finding the dedicator reserved for his private use that portion of the street within the outlined area.

Appeal from District Court, Russell County; C. A. Spencer, Judge.

Action by the City of Russell, Kansas, against the Russell County Building and Loan Association for a mandatory injunction to enjoin the defendant from maintaining a part of its building in what the plaintiff alleged was a street and to require the building's removal. From a judgment in favor of the defendant, the plaintiff appeals.

Judgment reversed with directions to enter judgment for the plaintiff.

DAWSON, C. J., dissenting.

Harold W. McCombs, of Russell, for appellant.

Oscar Ostrum and Frances K. Seeley, both of Russell, for appellee.

HARVEY Justice.

This was an action for a mandatory injunction to enjoin defendant from maintaining a part of its building in what plaintiff alleged is a street, and to require its removal. A trial by the court resulted in judgment for defendant. Plaintiff has appealed.

The material facts are not seriously controverted and may be stated as follows: The city of Russell was incorporated in 1872 as a city of the third class, with an area of about 2,400 acres, only a part of which was platted into lots and blocks. It continued to be a city of the third class until early in 1939 when it became and since has been a city of the second class. On September 7, 1886, Herbert G. Laing and Lyman B. Beardsley, owners in fee of unplatted land within the corporate limits of the city adjacent to that which had originally been platted, filed in the office of the register of deeds of Russell county a plat thereof designated as "Laing and Beardsley's Addition to the City of Russell," a copy of which is set out herewith.

On the plat was the certificate of the surveyor, which reads:

"I hereby certify that I have surveyed and laid off into lots, 31 acres off the west part of the Southwest Quarter of the Southwest Quarter of Section Twenty-six (26), Township Thirteen (13) South of Range Fourteen (14) West of the 6th P. M., excepting two 1-acre tracts now owned by one Juliana Cooper, for description of which see Record F of Deeds of Russell County, at pages 139 and 192.

"All streets running east & west are extensions of the original streets of the city of Russell, 82 1/2 feet wide. All streets, alleys, blocks, and lots are represented in figures and lines upon the accompanying map or plat.

"Survey established from a stone 1320 feet north of the southwest corner of the above described section.

"Richard Strout, Civil Engineer."

Also the certificate of the owners, which reads:

"Know all men by these Presents:

"That Herbert G. Laing and Lyman B. Beardsley of the City of Russell in the County of Russell and State of Kansas, as owners of the property hereinafter described, have caused to be laid out and platted, as is certified to by the above named Richard Strout, all of the West Thirty-one (31) acres of the Southwest Quarter of the Southwest Quarter of Section Twenty-six (26), Township Thirteen (13) South, Range Fourteen (14) West of the 6th P. M., except two (2) one (1) acre tracts now owned by one Juliana Cooper, for description of which see Record F of Deeds of Russell County at pages 139 and 192, situate in the City of Russell, County and State aforesaid, to be known as Laing & Beardsley's Addition to the said City of Russell, and that all streets and alleys described on said plat are for public use.

"In Testimony Whereof, the said parties have hereunto set their hands and seals this 7th day of September, 1886.

"Herbert G. Laing,

"Lyman B. Beardsley."

This plat with its certificates was duly recorded. At the trial the record of the plat was used in evidence. The original plat appears not to have been before the court. The recorded plat shows an area outlined and with horizontal lines in red ink, black ink was used elsewhere on the plat, covering parts of lots 11 and 12 in block 2 and extending to the south of those lots, or the main portion of them. (Image Omitted) The real controversy here is whether those lots were lengthened in part by this outlined and crossed area so that all the area is within the lots and the lots lengthened thereby, or whether the part of this area south of the north line of Third street continuing through the area is a part of the street.

At the time the plat was filed there was situated approximately on this area a house, the walls of which were built of native stone 18 inches thick. The second-story part of the house is 24 feet north and south and 30 feet east and west, with no basement, and is situated north of the north line of Third street. To the south of this main portion is a one-story wing 22 x 16 feet, with full basement. The stone wall between the two-story part of the house and the south wing extends from the basement floor straight up to the eaves of the second story of the main part of the house. About half of the south wing, or a little less, extends south of the north line of Third street, if that line runs through the area shown in the plat. At the time the plat was filed this house was occupied as a residence by Lyman B. Beardsley, one of the owners of the property who signed the certificate to the plat. Since then it has been occupied as a residence. Defendant took a mortgage on the property in 1925 to secure a loan, and in 1932 acquired title by a deed recorded April 13, 1934. In both the mortgage and the deed the property was described as lots 10, 11, 12 and 13 in Block 2, in the addition.

Few if any houses were built in the block along this street until about 1938, in which year the street was paved. Since then a number of new houses have been built along the street, and they are occupied as residences, and a sidewalk has been built along the north side of the street which comes up to the building on the east and west sides, and...