City of Wichita v. Boles

• Court: Kansas Supreme Court
• Writing for the Court: THIELE, Justice.
• Citation: City of Wichita v. Boles, 156 Kan. 619, 135 P.2d 542 (Kan. 1943)
• Decision Date: 10 April 1943
• Docket Number: 35718.
• Parties: CITY OF WICHITA v. BOLES et al.

135 P.2d 542

156 Kan. 619

CITY OF WICHITA v. BOLES et al.

No. 35718.

Supreme Court of Kansas

April 10, 1943

Rehearing Denied May 20, 1943.

Syllabus by the Court.

Where the facts are agreed on, what constitutes an invasion of a party's rights is a "question of law" and the appellate court can determine what is shown by the facts as readily and as fully as the district court.

Where the trial court renders a correct judgment under the facts and the law, the judgment will not be disturbed merely because wrong reasons are given for its rendition.

An ordinance providing that, where majority of buildings fronting street have observed a minimum front yard line, no buildings thereafter erected shall project beyond the front yard line so established, was not subject to construction that where there are houses with varying set-backs no house shall be built any nearer to the curb than the house closest to the curb.

Under ordinance providing that where majority of buildings fronting street have observed a minimum front yard line no building thereafter erected shall project beyond the front yard line so established, where the six houses in block were set back from 23.8 feet to 42.6 feet there was no established line with which subsequent builder was required to conform.

Where building permit was issued on October 8, 1941, and action to restrain alleged violation of minimum front yard line was filed on November 22, 1941, when the building was substantially completed and no restraining order or temporary injunction was asked, and when trial was had the house had been completed and occupied, it was too late for city to contend that setback line had been violated and that house constituted a nuisance.

Where issuance of mandatory injunction to compel removal of a part of completed house as a nuisance was sought, court was entitled to review the whole situation in determining whether the writ should issue.

1. Where the facts are agreed on, what constitutes an invasion of a party's rights is a question of law, and the appellate court can determine what is shown by the facts as readily and as fully as the district court.

2. If the trial court renders a correct judgment under the facts and the law, the judgment will not be disturbed merely because wrong reasons are given for its rendition.

3. In determining whether a mandatory injunction should issue, the court is bound to take a broad view of the rights of the parties and the public based upon all of the facts, and to exercise its sound discretion.

4. The record examined in an action wherein a city seeks by mandatory injunction to compel removal of a portion of a building alleged to be a nuisance, and held, the trial court did not err in denying the relief sought.

Appeal from District Court, Sedgwick County, Division No. 2; Robert L. NeSmith, Judge.

Action by the City of Wichita against Frank G. Boles and T. F Pittman to abate an alleged nuisance and to enjoin maintenance of building allegedly erected in violation of zoning ordinance. From a judgment for defendants, the plaintiff appeals.

Vincent F. Hiebsch and O. W. Helsel, both of Wichita (K. W. Pringle of Wichita, on the brief), for appellant.

George C. Spradling, of Wichita, (Jos. G. Carey, W. F. Lilleston Henry V. Gott, and A. M. Buzzi, all of Wichita, on the brief), for appellees.

THIELE Justice.

This appeal arises from a judgment against the City of Wichita in an action wherein the City sought to abate an alleged nuisance and to enjoin a defendant property owner from maintaining a building alleged to have been erected and now existing in violation of the zoning ordinance of the city.

So far as need be noticed, the petition, filed November 22, 1941, alleged that the defendant Boles was the owner of certain real estate known as 603 North Oliver Street, and that the defendant Pittman was a building contractor; that for many years there was in effect in the city a zoning ordinance which among other things provided for the size of front yards, section 12 providing in part as follows: "Front Yard. Where a majority of all the buildings fronting on one side of a street between intersecting streets have observed a minimum front yard line from the street line, no building hereafter erected or altered shall project beyond the front yard line so established. Provided, however, no building shall be required to set back a distance greater than forty (40) feet from the street line in complying with this regulation. Where there are no buildings on one side of a street between two intersecting streets, there shall be a minimum front yard of at least twenty (20) feet." That notwithstanding the ordinance, the defendants unlawfully erected a garage upon the real estate, the same being twenty-four feet and six inches from the North Oliver Street line; that the minimum front yard line within that block theretofore observed by the property owners was thirty feet and three inches, and the garage building encroached beyond the minimum line so observed a distance of five feet and nine inches, contrary to the ordinance; that the erection of the garage without observing the minimum front yard line was deliberate and intentional, and its location was unlawful and constituted a nuisance under G. S. 1935, 12-710, and unless enjoined and restrained, defendants would continue to maintain the garage contrary to the ordinance, and the nuisance should be abated and defendants permanently enjoined.

The answer of defendant Pittman denied that a majority of the houses in the block had observed a minimum front yard line and alleged the ordinance was too indefinite for legal construction and interpretation, and by a supplementary answer alleged that the section of the ordinance was unconstitutional. He also alleged that he had applied to and received from the city a permit to construct a duplex on the real estate. The answer of defendant Boles contained admissions and denials which need not be set forth. The City's reply denied unconstitutionality; admitted issuance of the building permit for a duplex, and alleged violation in locating the building where it is located in respect to the setback from Oliver Street; that defendants were notified the contemplated location was unlawful at the very commencement of the work; that under the zoning ordinance there was a provision for a board to grant relief in case of hardship but defendants made no application to that board for any relief, and that compliance with the ordinance would not have resulted in any hardship.

At the trial, the city was represented by two attorneys, and each defendant was represented by his own attorney. As a result of...