35 Kan. 611 | Kan. | 1886
The opinion of the court was delivered by
The plaintiff in error, Billard (defendant below), is the owner of a mill located at the corner of Kansas avenue and “A” (formerly Curtis) street, North Topeka. For several years there has been a scale for weighing located upon the sidewalk of “A” street, near the corner, for the use of the mill. Doors were arranged along the north side of the mill, also on “A” street, east of the scale, for loading and unloading from wagons, grain and other commodities. Erhart and the other plaintiffs below filed their petition asking that Billard and all persons acting for him be enjoined from using the scale, and from permitting wagons to stand upon the sidewalk for the purpose of loading or unloading grain, etc. The petition was demurred to upon the ground that the plaintiffs were not shown to have any interest in, or .to have suffered auy loss or injury by the acts complained of, different from the public generally, and that the petition showed affirmatively upon its face that they had no special loss, and therefore that as plaintiffs they had no capacity to bring the action. This demurrer was overruled, and the defendant excepted.
In Heller v. Railroad Company, 28 Kas. 625, it was decided that where a part of a street is attempted to be vacated, and the owners of lots abutting thereon do not complain, the owner of a lot in another block in front of whose lot the street is left its full width, and access to whose lot is in no respect disturbed or abridged, cannot maintain an action to restrain the vacation, although thereby the general course of travel will probably be thrown on some other street and no longer pass in front of said lot-owner’s property.
The question is, by which of these decisions the present case is to be governed? Upon the whole, we are satisfied that this case falls within the principles decided in Heller v. Railroad Company, supra. The difference in facts does not place them upon any different ground of principle. The obstruction complained of is not in front of the lots owned by the plaintiffs below, and their property is not opposite or contiguous to the obstruction. The case therefore differs from Mikesell v. Durkee, as in that case the defendants were attempting to excavate and build a private railroad in a public street in front of the plaintiff’s lots. In Heller Railroad Company, the plaiutiff alleged that the railroad company was occupying a portion of the street which the city council had attempted to vacate, and was commencing to lay tracks and erect buildings thereon; that thereby the travel was diverted from plaintiff’s property, and if the vacation of the street was permitted, that the property would cease to be of any value for business purposes, and of small value for residence purposes. In that case we said:
“The fact that as an indirect consequence injuries may result, gives no cause for interference. Only when the injury is direct, when the individual suffers some special wrong,*615 something different from that experienced by other members of the community, may the party injured challenge the action. It is not always easy to draw the dividing-line between those cases in which the injury is direct and special, and those in which it is indirect and general. . . . The closing up of access to the lot is the direct result of the vacating of the street, and the owner, by the loss of access to his lot, suffers an injury which is not common to the public; but in the case at bar, access to plaintiff’s lots is in no manner interfered with. The full width of the street in front and on the side is free and undisturbed, and the only real complaint is, that by the vacating of the street away from the lots, the course of travel is changed. But this is only an indirect result. There is nothing to prevent travel from coming by the lots if the travelers desire it. The way to the heart of the city by the lots is a little more remote than it was before, but still free passage is open to all who wish-to pass thereby. No one is compelled to stay away. Access to-the lots is the same that it was before, so that the injury is only the indirect result of the action complained of, and it is an injury which, if it exists at all, is sustained by all other lots along the street west of the parts vacated.”
In this case the property of the plaintiffs below abuts on a part of the street distant from the alleged construction, and the damage they suffer is sustained by the public generally. (High on Injunctions, 2d ed., §§.594, 827; id., §819, and cases cited; Williams v. Smith, 22 Wis. 594, and cases cited; Shaubut v. Railroad Company, 21 Minn. 502; Craft v. Jackson, Co., 5 Kas. 521; Bobbett v. The State, ex rel., 10 id. 15.)
The judgment of the district court will be reversed, and the case remanded for further proceédings, in accordance with the views herein expressed.
