Eastborough Corp. v. City of Eastborough

• Citation: 441 P.2d 891,201 Kan. 491
• Decision Date: 08 June 1968
• Docket Number: No. 45060,45060
• Parties: EASTBOROUGH CORPORATION, Inc., Appellee, v. CITY OF EASTBOROUGH, Appellant.
• Court: United States State Supreme Court of Kansas

Page 891

441 P.2d 891

201 Kan. 491

EASTBOROUGH CORPORATION, Inc., Appellee, v. CITY OF EASTBOROUGH, Appellant.

No. 45060.

Supreme Court of Kansas.

June 8, 1968.

Syllabus by the Court

1. The legislature, as the representative of the public, has plenary power over streets and highways, and as a general rule, full discretion as to opening, improving and vacating the same. A city when authorized by act of the legislature is acting as an administrative arm of the legislature.

2. When a city acts within the general statutory authority granted and according to the procedures required the power of the court is limited to determining the reasonableness of such action.

3. There is a presumption the governing body acted reasonable and it is incumbent upon those attacking its action to show the unreasonableness thereof.

4. In determining the reasonableness of the action a court may not substitute its judgment for the of the governing body and should not declare the action unreasonable unless clearly compelled to do so by the evidence.

5. The selection of a means to control and regulate traffic by a municipality is a governmental function under the police power and such action includes vacating portions of a street, installing barriers and prescribing one-way streets.

6. In an appeal from a judgment enjoining a city from vacating a portion of a street and installing barricades to direct traffic the record is examined and it is held (1) the action of the city in adopting an ordinance to control traffic was legally justified and was a proper exercise of police power, (2) under the evidence the trial court was incorrect in substituting its judgment for that of the governing body and (3) injunctive relief was improvidently granted.

Edward F. Arn, Wichita, argued the cause and Richard F. Mullins, Milo M. Unruh, H. R. Kuhn, Louis W. Cates and Roger K. Wilson, Wichita, were with him on the brief for appellant.

C. Robert Bell, Jr., Wichita, argued the cause and Verne M. Laing, Ferd E. Evans, Jr., Ralph R. Brock, Joseph W. Kennedy and Robert L. Driscoll, Wichita, were with him on the brief for appellee.

FROMME, Justice.

This appeal is from a judgment enjoining the City of Eastborough from vacating a portion of a street.

In this case Eastborough Corporation, Inc., has no connection with the City of Eastborough, as the two names might imply. The president of the plaintiff corporation is a resident of Kalamazoo, Michigan, and has developed large apartment projects in Michigan, Illinois and Kansas. The plaintiff corporation acquired a tract of land adjoining the City of Eastborough, which tract is now located in the City of Wichita. The tract was platted as Lot 3, Block A, in Clayton addition to the City of Wichita. It was zoned by the Planning Commission of Wichita to authorize the construction of an apartment complex of 138 units with storage and parking facilities for 250 vehicles.

Eastborough is a third class city covering 260 acres and it is restricted to approximately 300 single-family dwellings. The streets within this city are narrow (18 feet wide exclusive of curb), winding and designed for light traffic.

The defendant city (Eastborough) was incorporated in 1937 and by reason of an error in laying out the town one of its streets, Willowbrook Road, cuts through the northwest corner of plaintiff's tract. That portion of the street lying in plaintiff's tract is outside of the city limits of Eastborough. Willowbrook Road comes from the west, curves north through the northwest corner of plaintiff's tract and continues north under the name of Stratford Street. For the purpose of clarity the area involved is shown by the following rough sketch.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The defendant city adopted Ordinance No. 595 vacating a segment of Willowbrook Road including the triangular tract in Clayton Addition to the City of Wichita.

This ordinance, omitting the heading, legal description and the signatures, reads as follows:

'WHEREAS, it recently came to the attention of the governing body of the City of Eastborough that a small portion of the paved surface of Willowbrook Road between Drury Lane and Stratford was outside of the City limits and that it encroached upon private property lying outside said city limits; and at the point of a 'blind curve' thereon which is dangerous to travel; and

'WHEREAS, said portion of Willowbrook Road is located at a 'blind curve' and constitutes a hazard dangerous to travel; that to close, annul and discontinue a small portion of said street would not interfere with the ingress and egress of the owners of city lots in said area; but that it would correct the existing error of having said portion of said city street encroaching upon private property; and would also eliminate a dangerous 'blind curve' thus pomoting the public welfare and safety of the citizens of Eastborough and the public generally;

'NOW, THEREFORE, BE IT ORDAINED by the governing body of the City of Eastborough, a Third Class City within Sedgwick County, Kansas:

'SECTION 1: It is hereby declared to be a public necessity, expediency and convenience and to be in the interest of the public welfare and safety to annul and discontinue a portion of Willowbrook Road lying between Drury Lane and Stratford Street at a point north of and at another point west of the lines where the presently-traveled portion encroaches upon private property not within the city limits of Eastborough.

'SECTION 2: That the portion of Willowbrook Road and Stratford to be annulled and discontinued as a street be described as follows:

'SECTION 3: That the Mayor of said city having caused a survey to be made, be and he is hereby authorized to arrange for the necessary improvements, closing, and the erection of proper and sufficient warning signs, 'dead end' barriers and reflector signals.

'SECTION 4: This ordinance shall take effect and be in force from and after its publication once in 'The Democrat,' a newspaper designated as an official publication.

'APPROVED AND PASSED this 19th day of May 1966.'

The plat of Clayton Addition provides for a twenty-five foot road to connect with Willowbrook Road at the northwest corner of plaintiff's tract. This twenty-five foot road encircles plaintiff's tract and connects with Kellogg Street on the south. Kellogg is a main cast-west traffic way in Wichita and it passes within 300 feet of said tract. Since construction began on the apartment complex in June, 1966, access to the property has been limited to the Kellogg Street entrance on the south.

There days after the plat of Clayton Addition became final Ordinance No. 595 was adopted by the City of Eastborough and barricades were installed. Within a month thereafter suit was filed by plaintiff corporation to enjoin the City of Eastborough from enforcing this ordinance and to obtain damages. The petition alleged the action of the city governing body in adopting the ordinance was arbitrary, unreasonable, capricious and ultra vires.

The case was tried and the lower court found the action of the governing body was arbitrary, unreasonable and capricious and that there was no substantial relation between the public safety and the action of the governing body. The ordinance was declared void and the city was enjoined from vacating the segment of road and from maintaining the barricades.

The judgment was not based upon a deficiency in the statute authorizing a third class city to vacate or discontinue a street when deemed necessary or expedient. (K.S.A. 15-427). The judgment was not based upon a procedural defect in the enactment of the ordinance.

Therefore, the question before the court was limited to the reasonableness of the action taken by the governing body of the City of Eastborough. (Arkenberg v. City of Topeka, 197 Kan. 731, 421 P.2d 213.)

The legislature, as the representative of the public, has plenary power over streets and highways, and as a general rule, full discretion as to opening, improving and vacating the same. A city when authorized by act of the legislature is acting as an administrative arm of the legislature. (Heller v. Atchison, T. & S. F R. R. Co., 28 Kan. 625; Riddle v. State Highway Commission, 184 Kan. 603, 611, 339 P.2d 301; Gorrill v. City of Lawrence, 196 Kan. 303, 411 P.2d 704; Grantham v. City of Topeka, 196 Kan. 393, 411 P.2d 634.)

When the action of the administrative arm of the legislature is within the general statutory authority granted and according to the procedures required the power of the court is limited to determining the reasonableness of such action. (Arkenberg v. City of Topeka, supra; Bodine v. City of Overland Park, 198 Kan. 371, 424 P.2d 513.)

There is a presumption the governing body acted reasonably and it is incumbent...