The City of Oberlin v. Keys

• Decision Date: 12 May 1923
• Docket Number: 24,007
• Parties: THE CITY OF OBERLIN, Appellee, v. GEO. W. KEYS, Appellant
• Court: Kansas Supreme Court

215 P. 283

113 Kan. 421

THE CITY OF OBERLIN, Appellee, v. GEO. W. KEYS, Appellant

No. 24,007

Supreme Court of Kansas

May 12, 1923

Decided January, 1923.

Appeal from Decatur district court; WILLARD SIMMONS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. INJUNCTION -- Enjoining Reconstruction of Frame Building Within Fire Limits -- City Ordinance. A city of the third class may enjoin the reconstruction or repair of a frame building under an ordinance establishing fire limits and providing that a frame building located therein may not be rebuilt or replaced when damaged more than 50 per cent of its value.

2. SAME--Findings Sustained by the Testimony. The testimony examined and found sufficient to support the findings that defendant's building was damaged more than 50 per cent of its value.

3. SAME--No Reversible Error in Record. Other questions examined and no reversible error found.

L. H Wilder, of Norton, for the appellant.

A. C. T. Geiger, W. S. Langmade, and V. D. Woodward, all of Oberlin, for the appellee.

OPINION

HOPKINS, J.:

Defendant appeals from a judgment enjoining him from repairing a frame building owned by him and located within certain fire limits of the city of Oberlin.

Defendant's building was damaged by a fire which occurred December 23, 1920. At that time ordinance No. 30 of the city of Oberlin provided that if a wooden or frame building located within such fire limits were damaged more than 50 per cent of its value that such building should not be repaired or rebuilt. The city, on January 5, 1921, passed ordinance No. 114 which was published January 6, providing in substance that wooden or frame buildings within the fire limits could not be repaired or rebuilt if the damage thereto by fire exceeded 10 per cent of their value exclusive of foundation and vaults. After the passage of this later ordinance the city brought this action and secured judgment enjoining the defendant from reconstructing his building.

The defendant contends that the property was not damaged 50 per cent of its value; that ordinance No. 114 was not enacted until after the fire; that he had a vested right, at the time of the fire and immediately thereafter, to rebuild or repair his building which the city could not abrogate by the enactment of a new ordinance; that ordinance No. 114 could not be made retroactive, and that it was void because of unreasonableness. The validity of ordinance No. 30 was not challenged.

The evidence was conflicting as to the amount of damage to the building. The conflict was resolved by the court in favor of the plaintiff. Among other things the court found, that the city of Oberlin is a city of the third class; that the defendant at the time of the fire owned the building in controversy within the fire limits; that such fire occurred about 4 o'clock on the morning of December 23, 1920; that on that date ordinance No. 30 was in full force and effect that ordinance No. 114 was passed ...