The City of Emporia v. Humphrey

• Decision Date: 11 April 1931
• Docket Number: 29,317
• Citation: 132 Kan. 682,297 P. 712
• Parties: THE CITY OF EMPORIA, Appellant, v. HATTIE HUMPHREY, Appellee
• Court: Kansas Supreme Court

297 P. 712

132 Kan. 682

THE CITY OF EMPORIA, Appellant, v. HATTIE HUMPHREY, Appellee

No. 29,317

Supreme Court of Kansas

April 11, 1931

Decided January, 1931.

Appeal from Lyon district court; ALONZO C. McCARTY, judge.

Judgment reversed and granted.

SYLLABUS

SYLLABUS BY THE COURT.

1. TRIAL--Findings by Court--Necessity of Making. When a case is tried to the court and it is asked to make findings of fact and does so, it is error for the court to refuse to make a definite finding of a fact essential to a decision of the case which was properly presented to the court by the pleadings and the evidence.

2. MUNICIPAL CORPORATIONS--Streets--Encroachment by Abutting Owner. A permanent encroachment upon a public street for a private purpose is a purpresture and is in law a nuisance per se.

3. SAME--Streets--Power of City to Prevent Encroachments. The governing body of a city may prohibit and prevent encroachments into and upon the streets of the city, and when it determines that an encroachment upon a street should be removed, the court should not review the prudence of that determination unless it is charged and shown to have been arbitrary, capricious, or not made in good faith.

4. INJUNCTIONS--Availability to Prevent Street Encroachment. Injunction, or mandatory injunction, is an appropriate remedy for the city to abate encroachments upon streets.

5. ESTOPPEL -- State or Municipality. Laches and estoppel do not operate against the state, or its political subdivisions, so as to defeat the right of the public to the use of city streets, nor bar the right of the city to abate unlawful encroachments thereon.

Roscoe W. Graves and O. L. Isaacs, both of Emporia, for the appellant.

Bennett R. Wheeler, S. M. Brewster, John L. Hunt, Virgil V. Scholes and Margaret McGurnaghan, all of Topeka, for the appellee.

Harvey J. Smith, J., dissenting. Sloan, J., not participating.

OPINION

HARVEY, J.:

This is an action for a mandatory injunction to compel the defendant to move that portion of her building which plaintiff alleges is situated in one of the principal streets of the city. The trial court made findings of fact and rendered judgment for defendant. Plaintiff has appealed.

Commercial street in Emporia is the principal north-and-south business street of the city. The avenues which intersect it are numbered. Its north terminus is at Twelfth avenue, north of which are the grounds and buildings of the Kansas State Teachers College. The vehicular and pedestrian traffic on this street is heavy, and becoming more so. The principal business district of the city is perhaps at Sixth and Commercial, or south of it. North of that, where there were residence properties, these, in recent years, have been giving way to business properties. Defendant is the owner of two lots which lie directly north of Eleventh avenue and west of Commercial street. Commercial street is 100 feet in width. It is paved through the center 40 feet wide, on each side of which are parkings and sidewalks in the street. Plaintiff alleged that the title to the streets is in the county and that their possession and control are vested by law in the city, the governing body of which is authorized by law to prohibit and prevent encroachments and obstructions upon or into the streets, and to cause their removal; that in the years 1922 and 1923 defendant and her husband, since deceased, constructed a two-story building on the east portion of the lots above mentioned and unlawfully, and contrary to the ordinances of the city, placed the building, including its foundation and upwards, partially in and upon Commercial street and Eleventh avenue; that plaintiff is informed and believes, and therefore alleges, that the building extends in and encroaches upon Commercial street for a distance of three feet, and also encroaches upon Eleventh avenue a distance of twelve inches; that the governing body of the city, in regular meeting and by proper action, has deemed and declared it to be necessary and expedient that the entire width of Commercial street be made available and devoted to public use, and that plaintiff, before the beginning of this action, notified defendant of that fact and requested and demanded that she remove that portion of the building that encroaches into and extends over and upon Commercial street, and the defendant has neglected, failed and refused to do so. The prayer was that the defendant be ousted and ejected from the use and occupation of that portion of Commercial street on which her building is situated, and that defendant be required to remove the encroachment and obstructions and enjoined from thereafter maintaining them. In this court the question of the encroachment of the building upon Eleventh avenue is not urged, and we shall treat the case in so far as it pertains to the alleged encroachment upon Commercial street only. Defendant's answer denied, in substance, that her building is in the street, and alleged that at the time of the beginning of the construction of the building her husband notified plaintiff of his desire to erect the building, and that the city sent a surveyor to establish the street line at Commercial street on the west and in front of defendant's property; that the survey was made and the building constructed on the line shown by such survey; that no other line has been established by any other survey, and that the line so established was recognized by plaintiff and the public generally as being the correct line, and many buildings were erected along the street using the same line; that the expense of moving the building, or taking off the front portion of it, would not be less than $ 5,000, and that plaintiff is estopped from requiring defendant to move the building, or any part thereof; that even if the building does encroach upon the street its removal would not increase the use of the street by the public, nor permit any additional use to be made of it, and would not in any way benefit the public interest; that should the court, upon full hearing, find that the building encroaches upon the street, and that the same interferes with the public use of the street, she is entitled to a survey to know where the line is and to have the encroachment removed at the expense of plaintiff, or to have the court assess and determine her damages. The prayer was for a full and complete hearing and for a finding that the building does not encroach upon the street, and does not interfere with the use of the street by the public, and if the court should find that the building projects into the street, that the court further find that it does not interfere with the use of the street by the public; that if the court deem it necessary, a survey be ordered, under the direction of the court, and if it were found that the building is in the street and the public interests required that the same be removed, that plaintiff be required to pay the expenses of such removal, or that defendant's damages be determined and adjudged against plaintiff. The averments of the answer were denied in a reply.

At the close of the evidence the court was requested to make findings of fact, and did so. Among other things, the plaintiff requested the court to find whether defendant's building was in the street, and if so, to what extent. The court made no finding on that subject, but on a motion to modify findings made, and for additional findings, the court made the following finding on that point:

"That the east end or front of the building complained of is located at and along the west side of sidewalk on west side of said Commercial street, and the southeast corner of which said building extends thirty-six inches east and over a line contended by the plaintiff to be the west line of Commercial street and such east end or east side of such building is located upon a line extending thence in a northerly direction approximately fifty feet to a point at the northeast corner of such building and such point being thirty-four and one-half inches east and over a line contended by the plaintiff to be the west line of Commercial street, Emporia, Kan. [Italics ours.]"

Obviously this finding does not meet the issue squarely. One of the principal points to be determined in the action was whether the building was in the street, and if so, to what extent. Under the evidence there would have been no trouble for the court to have made a definite finding on that question. Three surveys had been made, one by the city engineer, one by the deputy county engineer, and one by the two of them acting together, all of which were in accord so far as the lot line and the street line in question were concerned. The deputy county surveyor had been employed by defendant to make the survey which he made by himself, but was not called by her as a witness, but was called by the plaintiff. No substantial effort was made by defendant to show that these surveys were inaccurate. It is true that the city engineer and surveyor started with certain points shown by a Parkman survey made in 1902, and since used and recognized as a basis for survey work. Some of the stakes used by the Parkman survey had been covered by pavement, or otherwise, but were noted by permanent landmarks. The evidence was that this was used simply as a means of convenience, and that the surveyors, while making the surveys testified about in this case, did in fact find original stakes, the lines from which coincided with those of the Parkman survey and with the surveys then being made. While these surveys were not made under the statute (R. S. 19-1423) providing for a survey to establish corners and boundaries, with notice to property owners, etc., no substantial reason is suggested for questioning their accuracy. For the...