State v. Swift and Company

• Decision Date: 09 March 1929
• Docket Number: 28,560
• Citation: 127 Kan. 817,275 P. 176
• Parties: THE STATE OF KANSAS, ex rel. BRYAN J. HOFFMAN, County Attorney, Appellee, v. SWIFT AND COMPANY, C. J. MCPHERSON and J. R. PAYTON, Appellants
• Court: Kansas Supreme Court

275 P. 176

127 Kan. 817

THE STATE OF KANSAS, ex rel. BRYAN J. HOFFMAN, County Attorney, Appellee, v. SWIFT AND COMPANY, C. J. MCPHERSON and J. R. PAYTON, Appellants

No. 28,560

Supreme Court of Kansas

March 9, 1929

Decided January, 1929.

Appeal from Saline district court; DALLAS GROVER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NUISANCES--Abatement in Public Street--Right of State to Maintain Action. The fact that the legal title to the streets of a city is vested in the county and the control of streets is conferred upon the city does not deprive the state, on the relation of the county attorney or the attorney-general, from maintaining an action to enjoin and abate a public nuisance which is being conducted and maintained in the street.

2. JUDGMENTS--By Default--Failure to Answer After Demurrer. When a petition states a cause of action and defendant's demurrer thereto has been overruled, and defendant declines to plead further, the general rule is that the court may render judgment for plaintiff by default.

C. W Burch, B. I. Litowich and LaRue Royce, all of Salina, for the appellants.

Bryan J. Hoffman, county attorney, and Z. C. Millikin, of Salina, for the appellee.

Harvey J. Burch, J., not sitting.

OPINION

HARVEY, J.:

This is an action in the name of the state on the relation of the county attorney to enjoin defendants from maintaining a structure and business alleged to constitute a public nuisance on one of the trees of the city of Salina, and to require the removal and abatement thereof. Defendants' demurrer to the petition was overruled, and they have appealed from that ruling. Later, defendants having elected to stand on their demurrer and not to plead further, a default judgment was rendered for plaintiff as prayed. Defendants' motion for a new trial was overruled, and they have appealed from the judgment and the order overruling the motion for a new trial. Both appeals present substantially the same questions and are presented together in this court.

The petition, after formal allegations, avers in substance that Elm street, in the city of Salina, a city of the first class, has been open and in constant use as a public street for its entire width for many years until obstructed by defendants, and that the street at the point in question is within the business section of the city and sustains a heavy vehicular traffic; that about 1926 defendants, owning lots on Elm street, erected on such lots a four-story business building which has since been used in carrying on their business of purchasing and selling poultry, eggs, and kindred products; that on the erection of the building defendants caused to be erected, and now maintain, what they call a loading and unloading dock along the south side of the building and immediately south of the line of their lots, which dock is 120 feet long, 10 feet wide and 5 feet high, and which extends to and encroaches upon Elm street its entire length and width, and also constructed and maintain a canopy over the dock which extends into and over Elm street 11 feet or more the full length of the dock; that in the conduct of their business defendants' automobile trucks and other conveyances, during all hours of the day, are backed up and driven alongside of the dock for the purpose of receiving and delivering merchandise, which trucks and conveyances appropriate and use the street to the extent of 10 feet or more and deprive the public from the use of that portion of the street; that defendants deposit and keep on the dock during all business hours a large number of chicken crates, egg cases, boxes and merchandise, and render travel upon the dock impractical and unsafe; that defendants, by the means aforesaid, have appropriated for their exclusive use practically the north half of Elm street for the distance of 120 feet in front of their building; that public school buildings are located near and children going to school, and other pedestrians, are unable to use the sidewalk in front of defendants' building because of the obstructions and use made of it by defendants, and are compelled to walk out near the center of the street, which is dangerous because of the heavy vehicular traffic. The petition further avers "that said encroachments and said obstructions so created and maintained by defendants are unlawful and without right, and constitute a public nuisance and deprive the public of a large and material portion of said street dedicated and designed for public use, and have caused and are causing great and irreparable injury to persons having occasion to travel over and upon said street, and renders the use of said street by said persons unsafe and dangerous . . ."

Appellants argue that their demurrer to the petition should have been sustained for the reason that the plaintiff cannot maintain the action; that by statute the fee title to the streets of a city is in the county, but that the control of the streets is in the city, citing McGrew v. Stewart, 51 Kan. 185, 32 P. 896; State v. Franklin County, 84 Kan. 404, 114 P. 247; City of Topeka v. Shawnee County, 91 Kan. 275, 137 P. 951; Foster v. City of Topeka, 112 Kan. 253, 210 P. 341; City of Cottonwood Falls v. Chase County, 113 Kan. 164, 213 P. 648; Slocum v. City of Wichita, 114 Kan. 260, 217 P. 297, and allied cases.

While it is true that, generally speaking, the city has control of the streets, in exercising such control it acts only as the arm of the state, and such control is not exclusive to the extent that the state is deprived of power and authority to abate a public nuisance conducted or maintained in a city street. In Eble v. The State, 77 Kan. 179, 93 P 803, where a similar question was raised as to the authority of the state to maintain an action to enjoin and abate the obstruction of a public highway, the...