Olsson v. The City of Topeka

• Decision Date: 09 February 1889
• Citation: 42 Kan. 709,21 P. 219
• Parties: P. OLSSON et al. v. THE CITY OF TOPEKA et al
• Court: Kansas Supreme Court

21 P. 219

42 Kan. 709

P. OLSSON et al. v. THE CITY OF TOPEKA et al

Supreme Court of Kansas

February 9, 1889

Decided July, 1889.

Error from Shawnee District Court.

THE material facts are stated in the opinion, filed on February 9, 1889. The plaintiffs in error filed a motion for a rehearing, which the court denied at the April session thereafter, but filed no opinion.

Judgment affirmed.

F. G Hentig, for plaintiffs in error.

W. A S. Bird, city attorney, contra.

HOLT C. All the Justices concurring.

OPINION

HOLT, C.:

The plaintiffs filed their petition in the district court of Shawnee county, praying that the defendants be enjoined from taking steps looking to the collection of a special assessment, or threatened assessment, on their property near Sixth avenue in the city of Topeka, for the improvements being made thereon. The petition states that the plaintiffs are the owners of certain lots, describing them, in the city of Topeka, on Topeka avenue, Van Buren, Tyler, Polk and Taylor streets; averring further, that the city of Topeka had entered into a contract to grade, curb and pave Sixth avenue from the west line of Jackson street to the western boundaries of the city; that it made such contract without authority, and also that the lots above named do not abut upon Sixth avenue and are not benefited by the grading, curbing and paving of said avenue, and that the several lots named are not liable for the costs of such improvement. They also further allege that the city council directed a special assessment and levy to be made; that the city clerk had threatened and was about to certify said special assessment to the county clerk of Shawnee county to be placed on the tax-rolls of said county, etc. A temporary restraining order was issued by the probate court of Shawnee county on August 30, 1888; on the 6th day of September a motion was made to dissolve such order, giving as a reason therefor that the allegations in plaintiffs' petition were untrue, except as specially admitted in defendants' answer. This motion was heard upon the 7th, upon oral testimony, and the injunction dissolved; the plaintiffs are here as plaintiffs in error.

The plaintiffs complain, first, that the court allowed oral testimony to be introduced, at the hearing of the motion; second, that the city engineer had made no special detailed estimate of the cost of grading, curbing and paving this avenue or street; third, that the court erred in holding that the lots in question were liable for improvements upon a street upon which they did not abut.

Concerning the first objection, it appears that both parties met and announced themselves ready for trial, and although the plaintiffs objected to the introduction of oral testimony, they did not ask for a continuance; and oral evidence was offered both by plaintiffs and defendants on the hearing of the motion. It is doubtful whether this objection is fairly raised by the record; in any event, after the plaintiffs themselves offered oral testimony without any application for a continuance, or any showing that they were prejudiced in any way by the ruling of the court, we are of the opinion that whatever ground the plaintiffs may have had for error in this proceeding was waived; it is not in their mouths to claim now, under the circumstances, that the court erred in proceeding with the trial after they had announced themselves ready.

The second objection is, that there has been no detailed estimates of the grading, curbing and paving of this avenue. There had been estimates submitted by the city engineer stating the number of yards to be graded and the cost per yard, number of yards to be paved and cost per yard, number of lineal feet of curbing and the cost per lineal foot, and of the engineering and other expenses. The only concern these plaintiffs could have in the estimates made by the city engineer is in the paving and curbing of the avenue in question. The engineering and grading were to be paid out of the general-improvement fund by the city, and we therefore shall only examine the estimates made for paving and curbing. Part of the avenue was to be paved with stone and asphalt and the estimate of the city engineer on that part to be thus paved was 2,633 square yards, at a cost of $ 2.85 per square yard; curbing, 600 lineal feet, at 85 cents per lineal foot; the number of yards is given and price per yard, and the aggregate cost of paving; the number of lineal feet of curbing is...