Paul v. Topeka Tp. Sewage Dist. No. 2, Shawnee County

• Decision Date: 12 July 1967
• Docket Number: No. 44770,44770
• Citation: 199 Kan. 394,430 P.2d 228
• Parties: Stewart PAUL, Appellant, v. TOPEKA TOWNSHIP SEWAGE DISTRICT NO. 2, SHAWNEE COUNTY, Kansas et al., Appellee.
• Court: Kansas Supreme Court

Page 228

430 P.2d 228

199 Kan. 394

Stewart PAUL, Appellant, v. TOPEKA TOWNSHIP SEWAGE DISTRICT NO. 2, SHAWNEE COUNTY Kansas et al., Appellee.

No. 44770.

Supreme Court of Kansas.

July 12, 1967.

Syllabus by the Court.

1. A township sewage district is a quasi-municipal corporation and has only such power and authority as may be conferred upon it by statute.

2. The governing body of a township sewage district may not amend or supersede the resolution establishing lateral sewer districts by including additional areas of land in an assessment resolution.

3. Under the facts set forth in the opinion a township sewage district is not authorized to construct a lateral sewer which would be outside the boundaries of all presently existing lateral sewer districts.

4. The governing body of a township sewage district cannot be compelled by mandamus to do an unauthorized act and any alleged contract to furnish the lateral sewer indicated in Syl. 3 above would be unenforceable, ultra vires and void.

5. A township sewage district is not liable for the negligent acts of its officers while in the performance of a governmental function when liability is not expressly imposed by law.

6. A judgment, correct in result, is not to be set aside on the ground it was arrived at through the process of erroneous reasoning. (Following Smyth v. Thomas, 198 Kan. 250, 424 P.2d 498.

7. The record in an action to compel a township sewage district to construct a lateral sewer line or in the alternative to recover damages for refusal to construct the same is examined and it is held: Summary judgment was properly entered in favor of defendant.

B. L. Pringle, Topeka, argued the cause and was on the brief for appellant.

Myron L. Listrom, Topeka, argued the cause and Eldon Sloan and James W. Sloan, Topeka, were with him on the brief for appellee.

FROMME, Justice.

This appeal was taken from a summary judgment entered in favor of defendant in an action growing out of the establishment of a township sewage district in Topeka township, Shawnee county, Kansas.

The primary issue on appeal is whether there remained in controversy any genuine issue as to any material fact at the time such judgment was entered.

The plaintiff Stewart Paul filed a petition seeking to compel the Topeka Township Sewage District No. 2 to construct a lateral sewer line which would serve a tract of land lying south of a development referred to as Pauline or in the alternative to pay damages for failure to supply sewer service.

Topeka Township Sewage District No. 2 will be referred to herein as the defendant or as the sewage district.

The sewage district filed answer to plaintiff's petition admitting plaintiff's property was in the main sewage district but denying his property was in any lateral sewer district and denying he was legally entitled to service.

At a pre-trial conference by stipulation of the parties the following exhibits bearing upon this controversy were admitted in evidence: (1) A map showing the boundaries of the main sewage district, the areas covered by lateral sewer districts, and the areas not included in any lateral sewer district but within the main district; (2) A resolution by the governing body of the main sewage district, creating prescribed areas for three lateral sewer districts within the main sewage district as provided in K.S.A. 80-2012; and, (3) A resolution by the governing body spreading assessments against various tracts of land, including plaintiff's land, for costs of constructing the main, outfall and intercepting sewers in the main sewage district and spreading separate assessments for costs of constructing the separate lateral sewers in lateral sewer districts number 1, 2 and 3 as authorized by K.S.A. 80-2007 and 80-2012.

It was admitted at the pre-trial conference and it is admitted on appeal that plaintiff's property is in the main sewage district.

It was admitted at the pre-trial conference and it is admitted on appeal that plaintiff's property is not located within the described boundaries of any of the three lateral sewer districts as set forth in the resolution establishing them and as outlined on the map referred to above.

The main sewage district was created and established in January 1958 and the electors thereafter authorized construction of the sewage system. Lateral sewer districts were created by a resolution of the township board in August 1958 as authorized by K.S.A. 80-2012 and 80-2003. Plaintiff's propery was assessed for the costs of constructing the main sewer in the main sewage district. It is agreed for the purposes of this action that this was proper. In the assessment resolution, however, the governing body of the main sewage district also assessed plaintiff's property for construction of lateral sewers in lateral sewer district No. 2. Plaintiff and his predecessors in interest have paid sewer assessments for the main sewer and for the lateral sewers in lateral sewer district No. 2. There is no lateral sewer service presently available to plaintiff's property although the sewage system was completed and the funds raised by bond issue have been expended. Lateral sewer district No. 2 as outlined on the maps and in the resolution lies north of an area known as Pauline. Plaintiff's property lies south of Pauline. Pauline, as outlined on the maps and in the resolution, is in lateral district No. 1. Plaintiff's property is not contiguous or adjacent to any of the boundaries of lateral district No. 2 as outlined on the maps and in the resolution.

The main thrust of plaintiff-appellant's argument is that even though his property is not within the boundaries of any lateral sewer district described in the resolution creating these districts, his property was included in lateral district No. 2 by the assessment resolution. He contends the assessment resolution amended or superseded the prior resolution creating the lateral districts and extended the boundaries of lateral district No. 2 to include his property. The remedy he seeks in mandamus and in contract is premised upon the strength of this argument.

The defendant-appellee's argument, in summary, is the main sewage district is a creature of statute and the authority to create and enlarge lateral sewer districts is governed and limited by the statute. Stated in another way, a resolution to create a lateral sewer district as required by specific statute cannot be amended or superseded by a later assessment resolution passed for the purpose of raising money to pay for construction.

Defendant further claims the construction of any lateral sewer lying outside the lateral sewer districts and any contract for the same are ultra vires; and, that mandamus cannot be used to compel construction of that which they have no legal right to do.

The appellant cites City of Atchison v. Price, 45 Kan. 296, 25 P. 605, as authority for his contention that the assessment ordinance had the effect of extending the boundaries of a previously established lateral sewer district. We do not consider that case controlling. The decision arose under a statute existing in 1889 which was quite general in nature and did not specifically outline the manner of creating a district as outlined in the present statute.

The plaintiff first contends that the trial court erroneously entered summary judgment based upon a mistaken conception that appellant was required to introduce or present sufficient evidence at the pre-trial conference to sustain his cause of action. Some justification for plaintiff's contention appears in the letter from the judge announcing his decision and directing a journal entry to be prepared.

The circumstances under which entry of a summary judgment may be proper were set forth in Brick v. City of Wichita, 195 Kan. 206, 211, 403 P.2d 964, 968, as follows:

'A summary judgment proceeding is not a trial by affidavits, and the parties must always be afforded a trial when there is a good faith dispute over the facts. (United States v. Kansas Gas and Electric Company, 287 F.2d 601 (10th Cir. 1961).) A motion for summary judgment cannot be made a substitute for a trial either before a court or jury, and a plaintiff who states a cause of action which entitles him to a trial by jury is entitled to have his case tried in that way and cannot be compelled to submit his evidence in the form of affidavits in resistance to a motion for summary judgment and have the issues determined by such motion. (United States v. Broderick, 59 F.Supp. 189 (D.C. Kan. 1945).)'

In Jarnagin v. Ditus, 198 Kan. 413, 417, 424 P.2d 265, 266, Justice O'Connor, speaking for this court, succinctly stated the basis upon which a summary judgment will stand in these words:

'When ruling on a motion for summary judgment, a court must resolve against the movant any doubt as to the existence of a genuine issue of material fact; the evidentiary material submitted by the party opposing the motion must be taken as true, and such party must be given the benefit of all reasonable inferences that may be drawn from such material.' (Citing cases.)

In Green v. Kaesler-Allen Lumber Co., 197 Kan. 788, 790, 420 P.2d 1019, 1022, this court said:

'This court has now laid down a definite yardstick for the granting of such judgments. Generally it must appear conclusively that there remains no genuine issue as to a material fact and that one of the parties is entitled to judgment as a matter of law. A mere surmise or belief on the part of the trial court, no matter how reasonably entertained, that a party cannot prevail upon a trial will not justify a summary judgment where there remains a dispute as to a material fact which is not clearly shown to be sham, frivolous or so unsubstantial that it would obviously be futile to try it. A party against whom a summary judgment is being considered must be given the benefit of all reasonable inferences that may be drawn from the facts under consideration.' (Citing cases.)

I...