Hill v. City of Lawrence

Decision Date28 July 1978
Docket NumberNo. 49084,49084
Citation582 P.2d 1155,2 Kan.App.2d 457
PartiesJustin D. HILL, Jr. and Barbara Ann Hill, Appellants, v. CITY OF LAWRENCE, Kansas, a Municipal Corporation, Vernon L. Branson, Jesse M. Branson, William J. Griffith, Shirley L. Griffith, J. L. Maloney, Dorothy B. Maloney, W. Stitt Robinson, and Constance M. Robinson, Appellees.
CourtKansas Court of Appeals

Syllabus by the Court

1. Mandamus lies only to compel the performance of a clear statutory duty; it does not lie to control the exercise of discretion by a public official.

2. Whether or not a street should be opened is a question entrusted to the discretion of the city's governing body.

3. Since the question of opening streets is a matter of the city's legislative discretion, its decision cannot be said to be "unreasonable" unless it amounted to an abuse of discretion.

4. Abuse of discretion in refusing to open a street is determined by the need of the general public, not that of a particular individual.

5. Declaratory relief is ordinarily not available where the same issue can be determined in an ordinary action, and particularly

where such an action is already pending.

6. The rule of paragraph 5 does not apply, however, where the issue involved in the declaratory judgment action is distinct from that involved in the pending action relied on to deny declaratory relief.

7. An abutting landowner has a right to use a dedicated but unopened street where the use made does not interfere with the use of the public.

8. While the city has broad authority to regulate the use of public streets, it may not exercise its authority in a manner that unjustly discriminates between individuals.

9. In an action to compel a city by mandamus to open a dedicated street or in the alternative for a declaratory judgment that plaintiffs are entitled to use the street in its unopened condition, it is held: (a) the court properly denied mandamus; (b) the court erred in denying declaratory relief that plaintiffs are entitled to the same use of the street permitted to other abutting landowners.

Peter K. Curran, of Petefish, Curran & Immel, Lawrence, for appellants.

Milton P. Allen, of Allen & Cooley and Richard L. Zinn, of Barber, Emerson, Six, Springer & Zinn, Lawrence, for appellees.

Before FOTH, C. J., and SPENCER and SWINEHART, JJ.

FOTH, Chief Judge:

Plaintiffs, Mr. and Mrs. Justin D. Hill, Jr., brought this action in mandamus to compel the governing body of the City of Lawrence to open a portion of Broadview Drive, a platted street which dead-ends, at their property line. Alternatively they prayed for a declaratory judgment that they are entitled to use the street in its unopened state for vehicular access to their property. Certain landowners residing on the unopened street intervened, opposing plaintiffs' position.

After a trial to the court the trial judge denied relief in mandamus and found plaintiffs had abandoned their prayer for a declaratory judgment. On plaintiffs' motion to alter or amend, in which they reasserted the second claim, the court adhered to its original decision on the mandamus count and, finding that their right to declaratory relief depended on the same factors that led to the denial of mandamus, denied declaratory relief as well. Plaintiffs have appealed.

Plaintiffs do not quarrel with the trial court's findings of historical fact. Rather, they take the position that they do not have access to their property through any legally enforceable route, and that the city is therefore bound to furnish it to them. We think this argument mistakes the nature of plaintiffs' first claim. In it, they sought by mandamus to compel the opening of a street. Mandamus lies only to compel the performance of a clear statutory duty. E. g., Jackman v. Public Service Commission, 121 Kan. 141, 146, 245 P. 1047 (1926); State, ex. rel., v. Kearny County Comm'rs, 146 Kan. 461, 463, 72 P.2d 67 (1937). It does not lie to control the exercise of discretion by a public official. E. g., Bohan v. Sumner County Comm'rs, 131 Kan. 87, 91, 289 P. 436 (1930); National Mutual Casualty Co. v. Hobbs, 149 Kan. 625, 633, 88 P.2d 1006 (1939).

Whether or not a street should be opened is a question entrusted to the discretion of the city's governing body:

"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. A. T. & S. F. Rld. Co., 28 Kan. 625; Riddle v. State Highway Commission, 184 Kan. 603, 611, 339 [2 Kan.App.2d 459] 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.)" (Eastborough Corporation, Inc., v. City of Eastborough, 201 Kan. 491, 494-495, 441 P.2d 891, 894 (1968).)

In Eastborough, the court said it would determine whether the action of the city governing body was "reasonable." At the same time it explicitly cast its scope of review in the mold of the traditional attitude of courts toward legislative bodies, saying:

". . . In determining the reasonableness of the action a court may not substitute its judgment for that of the governing body and should not declare the action unreasonable unless clearly compelled to do so by the evidence. . . ." (Id. at 495, 441 P.2d at 895.)

Since the question of opening streets is a matter of the city's legislative discretion, its decision cannot be said to be "unreasonable" unless it amounted to an abuse of discretion.

The authorities stress one major controlling factor in determining whether a street should be opened, I. e., the public use and not any private benefit. See, E. g., City of Jefferson v. Eiffler, 16 Wis.2d 123, 113 N.W.2d 834, 839 (1962); Aro Investment Company v. City of Omaha, 179 Neb. 569, 139 N.W.2d 349, 352 (1966); Tott v. Sioux City, 155 N.W.2d 502 (Iowa 1968), and 39 Am.Jur.2d, Highways, Streets, and Bridges, § 66, p. 453.

In this case the trial court concurred in the city's finding that there would be no public benefit from opening the street in question, and that the primary and almost sole benefit would be to plaintiffs. Plaintiffs introduced no evidence which would require a judicial finding of public benefit, and the trial court correctly found that they had not overcome the presumption in favor of the reasonableness of the city's action. Mandamus was therefore properly denied.

The claim for declaratory relief, however, presents an entirely different question. The city and the intervenors proceed on the supposition that this claim is duplicative of the mandamus claim, I. e., that it looks to the opening of the street. They quite correctly point out that declaratory relief is ordinarily not available where the same issue can be determined in an ordinary action, and particularly where such an action is already pending. Hudson v. Travelers Ins. Co., 145 Kan. 732, 739, 67 P.2d 593 (1937); Pugh v. City of Topeka, 151 Kan. 327, Syl. 3, 99 P.2d 862 (1940). The trial court adopted this view when it denied declaratory relief on the motion to alter or amend.

Here, however, the claim for declaratory relief did not involve the opening of the street as did the mandamus claim, but went to plaintiffs' right as abutting landowners to use the street in its unopened state. As the trial court found, two of the intervenors had laid a 110-foot strip of gravel along the unopened portion of Broadview Drive and were using it as a means of ingress and egress from their property. Plaintiffs sought permission first from the intervenors and then from the city to extend this gravel roadway an additional sixty feet to their property line. Both the intervenors and the city denied permission. In their request for...

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3 cases
  • Moore v. City of Lawrence, 54182
    • United States
    • Kansas Supreme Court
    • 3 Diciembre 1982
    ...opened, or put in condition for use by the public, is within the discretion of the city's governing body. See Hill v. City of Lawrence, 2 Kan.App.2d 457, 458, 582 P.2d 1155 (1978), and cases cited therein; 39 Am.Jur.2d, Highways, Streets, and Bridges § 68. A city is not required to open all......
  • Rodrock Enterprises, LP v. City of Olathe
    • United States
    • Kansas Court of Appeals
    • 13 Abril 2001
    ...690, 697, 957 P.2d 379 (1998). Mandamus will not lie to control the exercise of discretion by a public official. Hill v. City of Lawrence, 2 Kan. App.2d 457, 458, 582 P.2d 1155,rev. denied 225 Kan. 844 (1978). An action in mandamus is inconsistent with the statutory provision for challengin......
  • Ratley v. Sheriff's Civil Service Bd. of Sedgwick County, 53199
    • United States
    • Kansas Court of Appeals
    • 17 Junio 1982
    ...by which he attempts to distinguish this case from Pugh, Thompson, and Jarvis. He points to the following language from Hill v. City of Lawrence, 2 Kan.App.2d 457, Syl. PP 5, 6, 582 P.2d 1155 "Declaratory relief is ordinarily not available where the same issue can be determined in an ordina......

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