"The
plaintiffs present an application for an injunction to
restrain the city from opening certain streets through their
premises. The facts on which it turns are as follows: On May
20, 1872, C. F. Gilbert was the owner of a tract of land
which included plaintiffs' present premises, lying
adjacent to the site of the city of Wichita. The original
site of this city was the town of Wichita, and was platted by
L. S. Munger and Win. Griffenstein, conjointly. Adjacent to
this on the east was platted an addition known as
Hilton's addition to Wichita, and adjacent to this on the
north and east was the Gilbert tract. On the day mentioned
Gilbert filed a plat of his tract as an addition, which he
denominated 'Gilbert's Addition to Wichita, Sedgwick
county, Kansas.' The document which he filed as such plat
contained upon its face a map, which explained in the usual
form of a town plat showing the division of land into lots
streets, and alleys. The streets were named Park and Walnut,
running east and west, and Topeka, Emporia and Fourth
avenues, running north and south. It also contained a written
declaration signed and acknowledged by Gilbert, stating among
other things: 'The streets and alleys as shown by the
plat herewith are hereby set apart and dedicated to the
public forever.' By this plat, Park and Walnut streets,
and Emporia and Fourth avenues were made to traverse the
present premises. No part of either of these streets was ever
traveled by the public as a highway, or used for any public
purpose. At that time, as now, our statute provided that the
recording of such a map and plat 'shall be a sufficient
conveyance to vest the fee of such parcels of land as are
therein expressed, named or intended for public uses, in the
county in which such city or town or addition is situate, in
trust and for the uses therein named, expressed or intended,
and for no other use or purpose.'
"On
April 3, 1873, an act of the legislature was passed, the
object of which was to vacate the streets and alleys of this
addition. The title to the act reads, 'An act to vacate
certain streets and alleys in the towns of Lecompton and
Wichita.' The first section of the act attempted to
vacate certain streets in Lecompton, which is in Douglas
county, Kansas. The second section of the act reads:
'That the streets and alleys in Gilbert's addition in
the city of Wichita are hereby vacated.' Afterward
Gilbert made conveyances of different portions of the
property to different persons, describing them by metes and
bounds and without reference to the plat of the addition.
"About
five years ago Burleigh, the first-named plaintiff, (the
other plaintiff being his wife,) purchased from Gilbert's
grantee the premises in controversy in this case and took
possession of them, and since that time has occupied the same
as his homestead, and has placed permanent and valuable
improvements thereon where the streets as shown by
Gilbert's plat were located, and will sustain serious
loss if the city has the right to open streets through it
without compensation, as it proposes to do. During all the
time up to the present year the premises have been assessed
and taxed as unplatted land, and until about the time the
city passed the ordinance now to be mentioned, Burleigh had
no actual knowledge of the fact of the land having been
platted, or the act of the legislature vacating the streets.
"On
April 27, 1885, the city council passed an ordinance
extending the corporate limits of the city so as to include
all the land which had been platted as Gilbert's
addition, which it did upon the assumption that the land was
legally platted as an addition, and that the act of the
legislature vacating the streets and alleys was void; and it
is about to open said streets through plaintiffs'
premises without in any way providing for compensation,
either for the land taken or improvements destroyed. The
question for decision is, whether the city has the right to
open the streets without compensating Burleigh. I will not
discuss here many of the questions raised upon the argument,
but will confine myself to what I conceive to be the
controlling question in the case: Was the act of the
legislature vacating these streets and alleys a valid
exercise of legislative power? The first objection to the act
is that it invades vested rights. The evidence does not
disclose, nor is it a fact, that any individual had acquired
any rights in the streets prior to the passage of the act. It
is argued that the county, under our law, had a vested right,
but the fact is that the county was a naked trustee for the
benefit of the public, and a naked trustee never is supposed
to have any vested right in the trust estate. The only right
that ever vested in anyone was the right of the use of
streets which vested solely in the public as the beneficiary
of the trust. If the public has reconveyed or released its
beneficial interest, then the right of the county as trustee
has ceased, and by the very act of such release by the public
the title to the soil reverts to the proprietor. Now the
legislature unquestionably is the representative of the
public, with absolute power to release the interest of the
public in any highway, whether it be a state or county road,
or a street in a town or city. If, therefore, the
legislature, within the methods limited by the constitution,
has released the right of the public to the use of these
streets, there is no one who can contest Burleigh's right
to the soil.
"The
second objection to the act is, that the subject embraced in
the second section -- that is, the vacation of these streets
-- is not clearly expressed in the title to the act. The
constitution provides that the subject of every bill shall be
clearly expressed in its title, and of course if the subject
of vacating these streets was not sufficiently expressed in
the title, the second section of the act fails. The section
reads: 'The streets and alleys in Gilbert's addition
in the city of Wichita;' while the expression of the
title is to vacate certain streets in the town of Wichita.
"It
is claimed that at that time there was no Gilbert's
addition in the city of Wichita, while there may have been
another town of Wichita. It has been settled that the
constitutional requirements in question are sufficiently
complied with if the title to a bill is such as fairly to
apprise persons of ordinary intelligence of the subject
proposed to be legislated about in the bill. Now the streets
of a city or town exist as a part of the site or survey of
the ground, and are usually created and evidenced by the
several plats of the original site and additions thereto. The
law in providing for platting the sites and additions uses
the words city and town interchangeably, so that to call it a
city site or a town site the same idea is expressed; in other
words, there is but one kind of a site, and whether it is
called city or town it is one and the same thing. The term
'city of Wichita' may be used in different senses; it
may express the corporate entity or personality; it may
express the boundary lines, the corporate authority and
jurisdiction; but it has a broader sense in common use, by
which it expresses the idea of the site of surveyed and
platted territory for the occupancy of the collective body of
citizens, without as well as within the boundaries of the
corporate jurisdiction. Evidently the term 'city of
Wichita' as used in the act did not mean the corporation
or boundary lines, but was used for the purpose of
description, and meant...
