Decided
January, 1905.
Error
from Sedgwick district court; THOMAS C. WILSON, judge.
STATEMENT.
HIGHBARGER
and wife brought this suit permanently to enjoin Milford and
others from closing, or in any manner obstructing, an alleged
street, called Orange avenue, in Spring Grove addition to the
city of Wichita. This addition lies north of Thirteenth
street, which is an open and generally traveled highway and
leads west into the main part of the city of Wichita. On the
east of the addition is Hydraulic avenue, a public and
well-traveled thoroughfare, extending north and south. The
question at issue requires a knowledge of so much of Spring
Grove addition as lies between Thirteenth street on the south
and Fifteenth street on the north. This, together with the
location of the premises of the plaintiffs and defendant
Milford, is shown by the diagram herewith.
In 1895
the legislature passed an act undertaking to vacate the land
included in Spring Grove addition and all of the streets and
alleys therein contained. By reason of the vacation defendant
Milford claimed the right to the street theretofore known as
Orange avenue south of Highbarger's south line, because
he then owned all of the land on both sides of that avenue
south of that line; and it was for the special purpose of
preventing Milford from closing the street and cultivating
this land that Highbarger brought this suit. The land of the
other defendants lay north of Fifteenth street, on both sides
of Orange street, and therefore for the purposes of this
opinion it is not necessary further to consider them as
parties.
[SEE
FIGURE IN ORIGINAL]
The
petition is in the following language:
"(1)
Plaintiffs allege that they are husband and wife, and, as
such, own, reside on and occupy as their homestead, the
following premises, to wit: A piece of ground 350 feet wide
fronting on Orange avenue in Spring Grove's second
addition to the city of Wichita, between Fourteenth street on
the south and Fifteenth street on the north, and extending
back to Hydraulic avenue on the east, in Sedgwick county
Kansas; that plaintiffs' residence is situated on Orange
street, and fronts on said street; that there was at the time
plaintiffs placed said residence on said ground, and fronting
on said street, and now is, a public street used and occupied
as such by the public and by the plaintiffs, called and known
as Orange street, running and extending along north and south
in front of the aforesaid premises from Thirteenth street on
the south to Seventeenth street on the north, and said street
had been so used and occupied long prior to the occupancy and
the making of the improvements by plaintiffs as aforesaid
that said Orange street, prior to the occupancy and the
making of the improvements as aforesaid, had been platted and
dedicated to the use of the public by the party platting the
same, and was accepted by the public as a public street and
highway, and openly and notoriously used and occupied as
such; that plaintiffs purchased said grounds and built said
residence because of the location of said street as
aforesaid; that plaintiffs gained and obtained and now have a
vested right in and to said Orange street, and to have the
same kept and maintained as a public street or highway along
and in front of the said premises, by reason of the purchase
use and occupancy as aforesaid.
"Plaintiffs
allege that they have no ingress or egress to and from their
said house and residence, except out, over and upon said
Orange street, and that unless said street is kept open and
maintained as a public street or highway their said premises
will have no frontage, and their said residence and the
door-yard and lawn in front thereof will front on and open
into a corn-field or sunflower patch, and not on a public
street, as when they purchased said premises and made the
improvements thereon.
"(2)
Plaintiffs allege that the defendants, and each of them, have
plowed up and cultivated, and are threatening to plow up and
cultivate, and render useless as a street or highway, said
Orange street, and are about to obstruct and destroy the
same, and render the same impassable as a public street, and
are threatening and are about to plant said street in crops,
and otherwise destroy the grade thereof, and convert the same
into a crop field, and thereby to render the same wholly
useless for the purposes for which it was dedicated, and for
which it has been heretofore used by plaintiffs and the
public; that thereby the plaintiffs will be irreparably
damaged and injured, and that from the very nature of the
case, and the character of the injuries so sustained, said
damages cannot be estimated in an action at law.
"Wherefore
plaintiffs pray the court to grant a temporary injunction,
pendente lite, restraining and enjoining the defendants, and
each of them, from plowing up, obstructing, cultivating or in
any manner interfering with said Orange street between
Thirteenth street and Seventeenth street, or preventing
plaintiffs' free and uninterrupted use thereof, and that
upon the final hearing hereof said injunction be made
perpetual; and plaintiffs pray for their costs in this
behalf, and for such further and other relief that may be
just and equitable."
The
case was tried upon an agreed statement of facts, which, so
far as they are important in this consideration, are as
follow:
"(1)
That the plaintiffs are the owners of the following-described
lands, to wit: Three hundred fifty (350) feet on Orange
street in Spring Grove's second addition, immediately
south of Fifteenth street in said addition, and running east
on the south line of Fifteenth street to Hydraulic avenue.
"(2)
That the defendant Milford owns the following-described land,
to wit: All the land in Spring Grove's second addition
south of Fourteenth street, in said addition, on both sides
of Orange street, in said addition, to the south limits of
the said addition. Also, said Milford owns the land fronting
on Orange street immediately south and adjoining the land on
the south belonging to plaintiffs to Fourteenth street, and
said Milford also owns the land fronting east on Orange
street, immediately west of the land owned by him south of
the plaintiffs' land; said Milford being the owner of the
land on both sides of Orange street south of the south line
of the plaintiffs' land in Spring Grove's second
addition. . . .
"(6)
The said land owned by plaintiffs and defendant in this suit
was formerly platted as Spring Grove's second addition by
James S. Campbell, on the 24th day of August, 1887. . . .
"(8)
It is stipulated that Hydraulic avenue, lying on the east of
Spring Grove's second addition, and abutting on the east
of plaintiffs' land, is a public highway, and
section-line highway, and has been used by the public as a
public highway, and is intersected by Fourteenth, Fifteenth
and Sixteenth streets, if not vacated, and all the other
principal streets of the city of Wichita, running east and
west; and said Hydraulic avenue, running north and south
through Sedgwick county, Kansas, is an avenue, and is a
public highway.
"(9)
It is stipulated that in 1891, at the time plaintiffs
purchased a portion of the land that they now own, fronting
on Orange street, there was a house on lot 46, on Orange
street, in said Spring Grove's second addition, which
said house was situated on the third lot north of Fifteenth
street.
"(10)
It is stipulated that the plaintiffs have occupied a portion
of the land fronting on Orange street owned by them since
1891, and have occupied a house situated on said land,
fronting on Orange street, since 1891, and were occupying all
said land by them owned at the time of bringing this suit. .
. .
"(16)
It is further stipulated that Orange street, in front of the
plaintiffs' land, has never at any time been obstructed
by the said defendant or any one else, and that the defendant
has never threatened to obstruct said Orange street, in front
of the plaintiffs' property, and that the defendant has
no interest in the property south of Fifteenth street,
immediately opposite and west of the plaintiffs' land. .
. .
"(18)
It is further stipulated that the said Fifteenth street, east
of Orange street, was cultivated on the north side of the
street to near the center of said street by said James S.
Campbell or his tenants from 1892 to the present date, and
that said Fifteenth street on the north side of the street,
was never used as a public highway. . . .
"(19)
It is agreed that the lands in the rear of the
plaintiffs' property fronting on Hydraulic avenue were,
prior to this suit, used by the plaintiffs for their stables
and feed-yards.
"(20)
That prior to the plaintiffs' purchase of their lots
Orange street, from Thirteenth street to Fifteenth street,
had been worked by some one."
Upon
this agreed statement of facts the court made the following
findings and judgment:
"(1)
That the plaintiffs were entitled to means of ingress to, and
egress from, their premises on Orange street, south of
Fifteenth street and north of the north line of defendant
Milford's property, described as set forth in the agreed
statement of facts, over the said defendant's land.
"(2)
That the plaintiffs were not entitled to have Orange street
opened through the defendant Milford's property from the
north line of Milford's property to Thirteenth street.
"(3)
That the plaintiffs were entitled to a right of way out or
through the defendant James Milford's land from the south
line of said plaintiff's property east to Hydraulic
avenue, and that such right of way should be twenty-five feet
in width, and should be from Orange avenue to Hydraulic
avenue,...
