Sandburg v. The Board of County Commissioners of The County of Wyandotte and The Union Pacific Railroad Company

• Decision Date: 08 May 1926
• Docket Number: 26,444
• Citation: 245 P. 1029,121 Kan. 26
• Parties: J. P. SANDBURG et al., Appellants, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF WYANDOTTE and THE UNION PACIFIC RAILROAD COMPANY, Appellees
• Court: Kansas Supreme Court

245 P. 1029

121 Kan. 26

J. P. SANDBURG et al., Appellants, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF WYANDOTTE and THE UNION PACIFIC RAILROAD COMPANY, Appellees

No. 26,444

Supreme Court of Kansas

May 8, 1926

Decided January, 1926.

Appeal from Wyandotte district court, division No. 1; EDWARD L FISCHER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

HIGHWAYS--Construction Under Benefit District Plan--Legally Established Road. Under the statute (R. S. 68-703) a road, hard-surfaced or otherwise, improved under the benefit district plan, must be on a legally established public road. When a part of such a road is situated longitudinally upon the right of way of a railroad company, and such company has, by a long-time lease at nominal rent, consented to such use of that portion of its right of way for highway purposes, held, the statute has been sufficiently complied with to justify a refusal to enjoin the improvement of the road.

James M. Meek and James F. Getty, both of Kansas City, for the appellants; James T. Cochran, of Kansas City, of counsel.

J. H. Brady, county counselor, and T. F. Railsback, of Kansas City, for the appellees.

OPINION

HARVEY, J.:

This is a suit by resident taxpayers of a road benefit district to enjoin the county commissioners of Wyandotte county from improving a road. The trial court sustained a demurrer to the petition, and plaintiffs have appealed. The Union Pacific Railroad Company was made a party defendant and filed a separate demurrer; but this branch of the case is not before us.

A petition in due form, signed by the requisite number of property owners in the proposed benefit district, was presented to the board of county commissioners, praying for the improvement by grading, draining and hard-surfacing of what is known as the Golden Belt or Kaw Valley road from Muncie to Bonner Springs. The petition was considered and approved, and the necessary steps were being taken to make the improvement, when this suit was brought. For some three miles the route of the road is upon the right of way of the Union Pacific railroad. It is the contention of plaintiffs that the proposed route for such distance is not a regularly laid out, dedicated and established highway, and that defendants have no authority in law to make such improvements on any other than a regularly dedicated or established highway. The pertinent statute reads:

". . . When the petition filed for the improvement of a road describes a road which has not been legally established as a public road, . . . the board of county commissioners shall by order of said board lay out, alter or widen a public road and may vacate an existing road. All land required for the laying out, widening or altering of a road shall be acquired by the board of county commissioners by purchase or by donation: Provided, That if the owner or owners of the land shall refuse to sell or donate said land, the board of county commissioners are hereby authorized to exercise the right of eminent domain in the following manner: . . ." (R. S. 68-703.)

It is the rule in this state, and generally, that in the ordinary proceedings for laying out a road the same cannot be located longitudinally upon the right of way of a railroad. (U. P. Rly. Co. v. Kindred, 43 Kan. 134, 135, 23 P. 112; State, ex rel., v. Paul, 112 Kan. 826, 832, 213 P. 165, and authorities there cited.)

But the petition in this case, among other things, alleges in substance that Wyandotte county is lessee for highway purposes from the Union Pacific Railroad Company of the portion of the road proposed to be improved upon its right of way, under a long term lease at a nominal rental, which lease contains a provision in substance that it may be terminated by the lessor upon giving notice for a stated time, and if so terminated the lessor shall then provide the county with other right of way for...