The Board of Commissioners of Wyandotte County v. Arnold

• Decision Date: 01 July 1892
• Citation: 49 Kan. 279,30 P. 486
• Parties: THE BOARD OF COMMISSIONERS OF WYANDOTTE COUNTY et al. v. W. W. ARNOLD et al
• Court: Kansas Supreme Court

30 P. 486

49 Kan. 279

THE BOARD OF COMMISSIONERS OF WYANDOTTE COUNTY et al. v. W. W. ARNOLD et al

Supreme Court of Kansas

July 1, 1892

Error from Wyandotte Court of Common Pleas.

W. W ARNOLD and about 75 other land-owners commenced this action to enjoin special taxes charged upon their respective lands for the improvement of the Southwest boulevard, a street in the city of Rosedale, under the authority of chapter 214 Laws of 1887. (Gen. Stat. of 1889, PP 5521-5531.) The case was tried in the court of common pleas of Wyandotte county and by request of the parties the conclusions of fact found were stated separately from the conclusions of law. As conclusions of fact the court found:

1. That prior to the incorporation of the town of Rosedale, a county road known as the 'S. B. Bell road' was laid out and established, which road was of the width of 60 feet.

"2. There is no county road known as the 'Southwest boulevard,' but there is a public highway of that name which, at the time of the presentation of the petition to the board of county commissioners mentioned in the petition, was and still is wholly within the corporate limits of the city of Rosedale, which highway is 100 feet in width.

"3. The S. B. Bell road and the Southwest boulevard have the same termini, and lie in the same general direction, and for a considerable distance some part of the original S. B. Bell road lies within the ground occupied by the boulevard, and for a considerable distance the S. B. Bell road as laid out is wholly outside of the Southwest boulevard, and in some places is as much as nine feet therefrom.

"4. Under the proceedings based on the petition presented to the board of county commissioners, the Southwest boulevard was improved to the full width of 100 feet.

"5. The plaintiffs are the owners of the lands mentioned in the petition as belonging to them respectively, and the same lie within one-half mile of the Southwest boulevard.

"6. Two-thirds of the costs of the improvement were apportioned against the real estate lying within the half-mile limit of the boulevard, and the remainder of such costs was charged against the property in the county generally, and all of the costs have been entered upon the tax-rolls of the county, and the proper officers are proceeding to, and unless restrained will, collect the same from the property of plaintiffs in the same manner as taxes are collected generally.

"7. The following-named persons, who are plaintiffs in the above-entitled action, to wit, W. H. Nichols, John Dueboeck James Stalwart, S. B. Bell, B. Roth, John Christianson, Peter Gaffy, J. Lobner, P. G. Peterson, Richard Fitzgerald, S. S. Ely, Margaret Bell, E. J. Burlingham, E. A. Tompkins, Jacob Schall, William. Hampton, Augustus Barnes, George Thomas, John Kemp, P. Classon, Henry Pilgrain, L. H. Rose, T. W. Wright, and Frank Hollingsworth, signed the petition for the improvement of the road in plaintiffs' petition mentioned, and asked for the improvement, which was made under the provisions of chapter 21, Session Laws of 1887; the parties last named, and who are plaintiffs herein, all live contiguous to the road, and so lived in the immediate vicinity of the road so improved during its entire progress. The improvement so made, as requested by the plaintiffs last above-named and signers of the petition, greatly enhances the value of their property, much in excess of the tax or assessment attempted to be imposed herein.

"8. A majority of the resident land-holders living within one-half mile limit on either side of the road so improved signed a petition for the improvement of the Southwest boulevard, mentioned in plaintiffs' petition, for which the assessment is herein made."

As a conclusion of law, the court found:

"That the plaintiff and the other persons for whom he sues are entitled to a perpetual injunction to restrain the collection of the special taxes so assessed and levied against their lands, respectively."

Judgment was rendered in favor of the plaintiffs, and against the board of county commissioners of Wyandotte county and the other defendants. They excepted, and bring the case here.

Judgment reversed.

McGrew & Watson, and Morse, King & Morse, for plaintiffs in error:

The question now is, whether or not the plaintiffs, without reference to their having signed a petition, are estopped by their own action, or by their want of action, from prosecuting their injunction suit to restrain the collection of the taxes levied to pay for the improvements.

If the findings of fact had gone one step further, to the effect that the plaintiffs below had all signed the petition asking that the improvements be made, then, we think, under the reasoning of the court in Stewart v. Hovey, 45 Kan. 708, there can be no doubt but that the doctrine of estoppel would form a complete barrier to the proceedings of the plaintiffs. But not signing the petition, are the plaintiffs below estopped? We insist that their failure to act in opposition is as fatal to their claims as would have been their action in favor. Let us look at this question in the light of the surrounding facts. These plaintiffs (and we are now talking of those who did not sign the petition) all owned land and lived along the boulevard -- within one-half mile on each side of the road. They knew the law because they must know it. They knew that, if the boulevard was paved, two-thirds of the cost thereof would be charged up against their lands. They evidently knew that a petition was presented to the board of county commissioners asking for the improvements, because it is not presumable that a paper of that kind could be circulated sufficiently to obtain the signatures of a majority of the resident land-holders living within the district and these plaintiffs below be and remain in ignorance of it. They knew the improvements were being made, because they lived near the road and necessarily saw just what was being done. The record does not disclose a sign of objection or a word of protest from any of these gentlemen. Their lands are practically brought into the city by a nicely improved road, always clean and pleasant to drive upon, and greatly enhanced in value. They stand idly by, knowing that it is the purpose of the power making the improvement to charge the cost thereof to their lands. Their purpose and policy is to receive all the benefits and then to refuse to bear any part of the burdens. They should not now be heard in any pleas for equitable relief, because they have not done equity.

For more than two years, from the beginning of these improvements to the filing of the petition, these plaintiffs kept perfectly still, nodding and winking at one another in contemplation of the enjoyment they should find in partaking of the rich fruits that others were cultivating, well knowing that they would be expected to pay for it. But they kept quiet, doubtless fearing that any protest on their part would cause a cessation of the work, and they thereby lose the benefits. These men wanted the improvements made -- there can be no doubt of that -- but they wanted them, if possible, without cost to them. Thus their breathless silence. Liebstein v. Mayor of Newark, 24 N.J.Eq. 200, was an action brought by plaintiff to restrain the city from paying the contractor the full contract price for work done, and from assessing that price upon the complainants, without first making a proper reduction for defective work. It is not claimed that that case is wholly analogous to this, but it seems to us the doctrine there laid down applies with equal force to this. There the work was improperly done, and, so far as the record discloses, added nothing to the value of plaintiff's property. Here the quality of the work was not questioned, only the authority to do the work, and great additional value was given to the property by reason of it. There the plaintiff sought an injunction before the work was completed, asking only that the officer be restrained until a proper deduction had been made for defects. Even there the plaintiff was too late, the court saying:

"Equity, however, will undoubtedly readily afford relief in such cases as this, when timely application is made to the court; but such application must be made while the court has the power to do justice between the parties without injustice to others. In such case, the court will restrain the city authorities from paying for the work until the defects shall have been remedied; or will compel a just deduction, in respect to such defects, from the contract price, if it be still unpaid, or from any part of it remaining unpaid, if sufficient for the purpose; and if not sufficient, then so far as it will go. But if the land-owners stand by and permit the city to pay the contractor, they can have no relief against the assessment. In such case, their inaction is a ground of estoppel; and by permitting the city to pay the contract price, they have put it out of the power of this court to afford relief."

In Dusenbury v. Mayor of Newark, 25 N.J.Eq. 295, the court, referring to other similar cases it had decided, among them the one cited above, says:

"The complainant's application to this court for relief was not made until nearly a year and a half after the last payment was made upon the contract. For the reasons on which those decisions were based, the complainants cannot successfully invoke the aid of this court in respect either to the negligence or fraud of the contractor or the city authorities in the performance of the work."

Thus it is again. The parties, if they ever had any such rights as they there sought to enforce, had slept upon them too long and too peacefully. They awoke to find they were estopped simply because they had accepted the...