The City of Wichita v. Schwertner

• Decision Date: 05 April 1930
• Docket Number: 29,226
• Citation: 286 P. 266,130 Kan. 397
• Parties: THE CITY OF WICHITA, Appellant, v. AUGUST J. SCHWERTNER, Appellee
• Court: Kansas Supreme Court

286 P. 266

130 Kan. 397

THE CITY OF WICHITA, Appellant, v. AUGUST J. SCHWERTNER, Appellee

No. 29,226

Supreme Court of Kansas

April 5, 1930

Decided January, 1930.

Appeal from Sedgwick district court, division No. 1; ISAAC N WILLIAMS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

MUNICIPAL CORPORATIONS--Zoning Ordinances--Construction as to Effect on Existing Cemetery. In a proceeding for damages for land taken for the widening of a street the amount of damages turned on the use which could be made of the property. It was a part of an existing cemetery at the time of the passing of a zoning ordinance which placed it in an "A" residence district, providing a limited use of the property in such district. It is held, that the zoning ordinance did not have the effect of restricting the use for cemetery purposes of the existing cemetery, and that an award of damages based on the use of the property for cemetery purposes was proper.

A. V. Roberts, Vincent F. Hiebsch and Roger P. Almond, all of Wichita, for the appellant; George Gardner, of Wichita, of counsel.

L. P. Brooks, L. A. Hasty and J. B. Nash, all of Wichita, for the appellee.

OPINION

HARVEY, J.:

This is an appeal from an award of damages for the widening of a street in a condemnation proceeding. The question involved is the use which could be made of the property taken. The owner contended its more favorable use was for cemetery purposes. The city contended that the property, having been zoned in the "A" residence district by a valid zoning ordinance of the city, could be used only for one- or two-family dwellings, church or temple, library, farming or truck gardening, school or college, or incidental accessory buildings. The owner contended that this ordinance was void as to this property. The trial court sustained that contention, but to prevent a subsequent trial had the jury find the damages if the property could be used for cemetery purposes, which damages the jury assessed at $ 1,825, and also find the damages if it could be used for the purposes only designated in the zoning ordinance, which the jury fixed at $ 500. The court rendered judgment for the larger figure, and the city has appealed.

In April, 1889, John Joseph Hennessey, a bishop of the Catholic Church, acquired title to a ten-acre tract of land. This was platted and used for cemetery purposes and was known as Calvary cemetery. In November, 1916, Bishop Hennessey acquired an additional tract of land adjoining the above-mentioned ten acres on the west. This tract is 630 feet north and south and 153.78 feet [163.66 feet] east and west. This tract was bounded on the west by Rutan avenue, which was thirty feet wide. The title to both tracts was later conveyed to August J. Schwertner as bishop, who held the same for cemetery purposes and as a unit; but at the time of the condemnation proceedings, soon to be mentioned, the last-acquired tract had not been platted into cemetery lots, although that has since been done, and there have been no burials therein.

In 1922 the city of Wichita passed its first zoning ordinance. An amended zoning ordinance repealing the first was passed in July, 1926, and is still in force. Both zoning ordinances designated an "A" residence district which included Calvary cemetery, as well as other cemeteries, within the city limits. On the map, which is a part of the zoning ordinance, the original ten acres and the later acquired tract to the west of it are platted together as one tract marked "Calvary cemetery," and zoned into "A" residence district, and the ordinance provided:

"That in the 'A' residence district, . . . no buildings or premises shall be used, and no building shall be hereafter erected or altered . . . except for one or more of the following uses: One-family dwellings, two-family dwellings, churches and temples, libraries, farming and truck gardening, schools and colleges, accessory buildings incidental to the above uses . . ."

Notwithstanding this ordinance the tract of ground described as Calvary cemetery has continued to be used for cemetery purposes, burials being made there from time to time, and generally used for all cemetery purposes as though the zoning ordinance had made a specific provision for cemeteries, designating them as such and zoning them for cemetery purposes.

In 1927 the board of commissioners of the city, for good cause, deemed it to be to the best interests to widen Rutan street from 30 to 50 feet, and did so by taking a strip 20 feet wide and 630 feet long off the land the title to which was in the name of August J. Schwertner, as bishop, as above stated. The commissioners appointed to ascertain the damages fixed the value of the property taken at $ 1,500, the benefits accruing to the owner $ 342.50, and made an award for the difference. Deeming himself aggrieved by the award, the owner appealed to the district court, where a trial was had with the results as above stated.

Appellant argues that zoning ordinances have been upheld by this court (Ware v. City of Wichita, 113 Kan. 153, 214 P. 99; West v. City of Wichita, 118 Kan. 265, 234 P. 978) also by the supreme court of the United States (Euclid v. Ambler Co., 272 U.S. 365, 71 L.Ed. 303, 47 S.Ct. 114; Zahn v. Bd. of Public Works, 274 U.S. 325, 71 L.Ed. 1074, 47 S.Ct. 594), and by many state courts of last resort (Kroner v. City of Portland et al., 116 Ore. 141, 240 P. 536; Matter of Wulfsohn v. Burden, 241 N.Y. 288, 150 N.E. 120; Brett v. Building Commissioner of Brookline, 250 Mass. 73, 145 N.E. 269; State, ex rel., v. Houghton, 164 Minn. 146, 204 N.W. 569; State v. Fowler, 90 Fla. 155, 105 So. 733; State v. City of New Orleans, 159 La. 1016; Fourcade v. San Francisco, 196 Cal. 655, 238 P. 934; Pritz v. Messer, 112 Ohio St. 628, 149 N.E. 30; City of Aurora v. Burns, 319 Ill. 84, 149 N.E. 784, are some of the cases so holding), on the ground that the restrictions contained in such ordinances bear a substantial relation to the public health, safety, morals, or general welfare of the people, and some of the decisions, including our own, hold that there is an aesthetic and cultural side to city government which can be made the basis of reasonable limitations in a zoning ordinance. All of this may be conceded, but from this it does not follow that zoning ordinances valid in their general scope may not be...