Raymond v. The City of Wichita

• Decision Date: 07 January 1905
• Docket Number: 13,822
• Citation: 79 P. 323,70 Kan. 523
• Parties: OSIE A. RAYMOND v. THE CITY OF WICHITA
• Court: Kansas Supreme Court

79 P. 323

70 Kan. 523

OSIE A. RAYMOND v. THE CITY OF WICHITA

No. 13,822

Supreme Court of Kansas

January 7, 1905

[Copyrighted Material Omitted]

Decided January, 1905.

Error from Sedgwick district court; PRESTON B. GILLETT, judge pro tem.

STATEMENT.

THIS was an action of ejectment brought bye Osie A. Raymond to recover from the city of Wichita a strip of land 54 feet wide by 431 feet long, being the north 54 feet of what is known as Douglas avenue, in the city of Wichita, between Wichita street and Waco avenue.

In 1871 William Griffenstein acquired land on the south of what is now the north line of Douglas avenue, and laid out Griffenstein's first addition to Wichita, which extended from Lawrence avenue on the east to Water street on the west and on the north to the north line of Douglas avenue. Douglas avenue was dedicated to the public in this addition to the width of 114 feet between the streets mentioned. In 1872 Griffenstein platted his second addition, in effect extending the first addition 300 feet west. In this second addition he dedicated Douglas avenue on the plat to the use of the public, 114 feet wide and extending west to the middle of Wichita street in Waterman's addition to the city. West of Wichita street, and north of the tract of land marked "county road" on the map, is the tract in controversy. For a better understanding of the controversy reference is made to a map of the ground in dispute, on a scale much reduced from the one used on the trial.

The land now claimed by the city as a part of Douglas avenue, embracing the tract marked "county road" on the map and the strip 54 feet wide north of it, between Wichita street and Waco avenue, about 600 feet long, was never platted. In 1886, by petition of the mayor and council to the judge of the district court, land south of Douglas avenue extended west was taken into the city, leaving the tract 114 feet wide and 600 feet long, within which is the land in dispute, out of the corporate limits at the special request of the mayor and council. This strip, 114 feet by 600 feet, was never a part of the city of Wichita until 1888, and before that time formed a part of Wichita township.

At the west end of this strip 114 feet in width a toll-bridge was erected across the Arkansas river in 1872, crossing the stream in a southwesterly direction. The bridge was sold to Sedgwick county in 1877. Before 1872 there was a ford across the Arkansas river a short distance south of where the bridge was afterward built, and a cattle trail running from the ford eastwardly south of Douglas avenue. After the building of the bridge, which was about 77 feet wide, travelers from the west and southwest of the city on crossing the river passed over the 114-foot strip lying west of the west end of Douglas avenue. The travel was not confined to any particular part of the strip, although it is probable that the south side of it was more in use because of the bridge's being at the southwest corner. The travel over the strip was kept up continuously until the commencement of this action.

The board of county commissioners never caused any work to be done on the strip, nor did the road-overseers in Wichita township perform any labor thereon.

In 1884 Griffenstein petitioned the city to take the land into the corporate limits, designating it as Griffenstein's ninth addition, tendering a plat. Griffenstein was mayor at the time. The city council refused to approve the plat.

In January, 1885, a petition in due form was presented to the board of county commissioners, signed by persons living in the vicinity of the land, asking that a county road be laid off on the south part of said strip from the west end of Douglas avenue to the northeast corner of the bridge across the Arkansas river. Griffenstein and wife filed written consent for the appropriation of so much of the land as the board of county commissioners should deem necessary for the road. In pursuance of the petition the county commissioners laid off and opened a road 60 feet wide, over the south side of said strip, from the west end of Douglas avenue on the east to the bridge on the west, leaving the land in dispute lying on the north side of the road.

In May, 1888, the city of Wichita, by an ordinance approved by a decree of the district court of Sedgwick county, enlarged and defined its boundaries and took into its corporate limits the strip of land over which the road was laid out by the county commissioners, and also the strip of land in dispute, and has ever since exercised authority over all of it, and its street commissioners have improved and worked it. It was brought into the city just fourteen years before this action was begun.

In July, 1886, Griffenstein and wife transferred the land in controversy to William C. Boeling, a resident of Missouri, who was never afterward in the city of Wichita. In 1894 Boeling transferred it to plaintiff below, a resident of Oklahoma.

There was never any express dedication of the property in dispute by Griffenstein, or his grantee, by deed, or writing, or orally. The case was tried to a jury in the court below. Testimony was introduced tending to show that Douglas avenue, where the land in dispute is situated, had been used continuously as a public street and traveled to its present width from 1872 until the time of the trial. On the south side of Douglas avenue, between Wichita street and Waco avenue, several buildings were erected as early as 1873, among them a packing-house and a stone-yard. Between Wichita street and Waco avenue a lumber-yard was situated in 1886, fronting on the land in question. Walks were laid across Douglas avenue and a ditch dug through the strip in dispute along its north side as early as 1874, and grading was done by the city authorities. In 1872, by resolution of the city council, a wooden sidewalk twelve feet wide was ordered laid on each side of Douglas avenue, commencing at the depot of the Wichita & Southwestern Railroad Company and running thence west to the Arkansas river.

In 1874 Griffenstein sold and conveyed the land owned by him south of Douglas avenue and abutting on the strip 114 feet wide between Wichita street and Waco avenue, the north 54 feet of which is the land in controversy.

In 1882 an ordinance was passed by the city council of Wichita, and approved by the mayor, granting the right of way to a water company to extend its mains "on Douglas avenue from bridge near Arkansas river to east side of depot." This gave the right of way over the 114-foot strip now known as a part of Douglas avenue. The ordinance was signed by Griffenstein, who was then mayor. While he was mayor, in 1878, Griffenstein signed an ordinance passed by the city council establishing the grade of Douglas avenue over the land in dispute. In 1887, while Griffenstein was mayor, an ordinance was passed granting a street-railway company the right to construct its line upon and over all the streets and alleys of the city. Later, tracks were laid and cars run over the 114-foot strip, a part of which is in dispute. The evidence showed that the land in controversy was not assessed for taxation in the city of Wichita from the year 1885 to the beginning of the action.

A verdict was rendered in favor of the city, and judgment entered thereon. Plaintiff below has prosecuted error to this court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. HIGHWAYS--Prescriptive Rights--Ejectment--Estoppel. A strip of land 114 feet wide, adjacent to, but outside of, an incorporated city, was used by the traveling public for many years as a highway without objection from the owner of the soil. It was then brought into the city limits and its use as a street continued to the same extent as before. In an action of ejectment against the city by the owner of the fee to recover the land so used, it is held, that the change of the highway from a country road to a city street did not affect the rights which the public gained in the way of user, nor in any manner make the acquiescence in such use by the claimant less effective as an estoppel against him.

2. HIGHWAYS--Common-law Dedication--Evidence. Where a common-law dedication of a highway is asserted against an owner of land over which the highway runs, evidence that the governing authorities of a city laid sidewalks on each side of the road, established its grade, and...