Highbarger v. Milford

• Decision Date: 08 April 1905
• Docket Number: 14,077
• Citation: Highbarger v. Milford, 71 Kan. 331, 80 P. 633 (Kan. 1905)
• Parties: N. HIGHBARGER et ux. v. JAMES MILFORD
• Court: Kansas Supreme Court

80 P. 633

71 Kan. 331

N. HIGHBARGER et ux. v. JAMES MILFORD

No. 14,077

Supreme Court of Kansas

April 8, 1905

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,...