The City of Kansas City v. Woods Brothers Corporation

• Decision Date: 08 November 1924
• Docket Number: 25,871
• Citation: 117 Kan. 141,230 P. 79
• Parties: THE CITY OF KANSAS CITY, Appellee, v. WOODS BROTHERS CORPORATION, (THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF WYANDOTTE), Appellant
• Court: Kansas Supreme Court

230 P. 79

117 Kan. 141

THE CITY OF KANSAS CITY, Appellee, v. WOODS BROTHERS CORPORATION, (THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF WYANDOTTE), Appellant

No. 25,871

Supreme Court of Kansas

November 8, 1924

Decided July, 1924

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

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

MUNICIPAL CORPORATION--Public Levee--Platted and Dedicated by the Owner as Part of Town Site--What Constitutes a Diversion by the City Not Inconsistent With the Purposes for Which Levee Was Originally Dedicated--Power of City Over Public Levees. Where a strip of land on the bank of a navigable stream was included in a town site and platted and dedicated as a public levee, but through want of river navigation such strip of land was not so used for over half a century, and where by accretion the strip of land so dedicated had increased in acreage to many times its original extent, but remained for many years in disuse, subject to overflow by recurring floods, and a seed bed for noxious weeds and a breeding ground for malaria, at the threshold of a large and rapidly growing city, it is held that it was not beyond the discretionary powers of the city government to lease the property and grant a license for its use to a private corporation for a term of years for a consideration of money rent and upon condition that the lessee or licensee should construct certain desirable improvements on the property designed to protect it from floods and to make it sightly, sanitary, and consistently useful with its original purpose as a public levee, and tending to promote such use, and where the contract stipulates that no use shall be made of the property at variance with nor prejudicial to its actual or potential use as a public levee.

Guy E. Stanley, of Kansas City, for the appellant.

H. J. Smith, city attorney, for the appellee.

OPINION

DAWSON, J.:

This was an amicable action to obtain a declaratory judgment on the validity of a contract by which the city of Kansas City leased a certain tract of land to Woods Brothers' Corporation for a term of years. The land involved consists of what once was a narrow strip of platted ground in the original town site of Wyandotte, now Kansas City, on the right bank of the Missouri river, north of the mouth of the Kansas river. The original dedicators of the town of Wyandotte set aside this strip of ground in 1857 for a public levee. At that early time and for some years following there was considerable navigation on the Missouri river, and the levee was, or might have been, of some potential public service incidental thereto. With the coming of railroads, however, river navigation declined and the strip of land in question was left in idleness and neglect. For over half a century it has been of no practical service as a public levee. By accretion of silt and slow recession of the Missouri river, the original narrow strip along the river bank dedicated as a public levee in 1857 has grown until there are now about 111 acres in the tract. Some shanties have encroached thereon, some small industries have been conducted there on sufferance, but for the most part the platted levee and its accretions have been put to no use. Surrounded by the industry and bustle of a great and growing city, it has remained in idleness and unsightliness, subject to occasional overflow, a seed bed for noxious weeds and a breeding ground for malaria and kindred diseases. South of the platted strip of ground in question, and westward upstream for several miles along the Kansas river, is the Kaw Valley drainage district, where a system of dikes and embankments has been constructed for purposes of protection against floods. To the northward also, along the right bank of the Missouri river, is the Fairfax drainage district, where an extensive system of dikes has been erected for the same purposes. To link up the Fairfax drainage dikes with the Kaw Valley drainage dikes by improving this long-neglected public levee, as well as to put the property to some practical use consistent with the purpose of its original dedication, and to have it cleaned up and made sanitary and sightly, the city has leased the levee and its hundred-odd acres of accretions to the defendant corporation for thirty years at twenty dollars per acre per anum. The lease contemplates the diking of the property to prevent recurrence of floods and submergence, the laying out of streets, the construction of sewers and paving, the erection of industrial plants and warehouses, and the construction of facilities for any river traffic which may materialize during the term of the lease--all consistent with and apparently helpful to and promotive of the use of the property as a public levee. It is provided:

"The party of the second part agrees that said property shall not be used for any purpose which will conflict with its use as a public landing or public levee, party of the first part reserving to itself all such rights, or in violation of any state law or city ordinance now in force or that may be in force in the future and during the life of this lease."

The trial court made findings of fact and held--

"That the city being in full lawful control, possession and dominion of said land, had the lawful right and authority to execute the lease involved in the form and manner in which it was executed, and it is of material benefit to the city, its citizens and taxpayers and the public, and that the terms of such lease [should] be carried out.

"That such lease does not interfere with or impair the right of the city to use such land for levee purposes should the need therefor arise, and does not impair or cloud the legal title held by the defendant county.

"That such lease was in all respects valid and all the terms thereof were and are within the lawful power and authority of the grantor therein."

Were this conclusion and judgment correct?

The city had full dominion and control over this so-called public levee. (Douglas County v. City of Lawrence, 102 Kan. 656, 171 P. 610.) The city could not give countenance to any disposition of the property at variance with the purpose for which it was dedicated. ( Comm'rs of Franklin Co. v. Lathrop, 9 Kan. 453; The State, ex rel., v. City of Manhattan 115 Kan. 794, 225 P. 85, and citations.) But here there is no attempt to divert the property to a use at variance with the purpose for which it was dedicated. Rather the contrary. By the lease it is proposed to improve the property so that it will be better adapted to the purpose of a public levee, and perchance to attract to it such traffic as usually is conducted on and about a public levee. The city has unquestioned power to lay a pavement and construct driveways on this public levee. It has power--and probably it is its duty--to improve this property, to clean it up and make it sightly and sanitary, and to dike it to prevent recurring overflows. And it would be a narrow construction of the city's powers to hold that, while it could lawfully make these improvements itself, it has no power to cause them to be made through a contract with a lessee or licensee. Nor will it be disputed that whether or not a particular use of land dedicated as a public park, levee or commons amounts to a diversion from the uses for which it was dedicated depends upon the circumstances of the dedication and on the intention of the dedicator, and is therefore largely a question of fact. Thus in Bailey v. City of Topeka, 97 Kan....