101 Kan. 817 | Kan. | 1917
The plaintiffs sued to recover damages for closing up Third street in the city of Wichita across and south along Santa Fe avenue, thereby obstructing their ingress and egress to and from certain real estate owned by them. A demurrer to their evidence was sustained and they appeal.
Santa Fe avenue, formerly Fifth avenue, running north and 'south, is intersected at right angles by Third street. At the southeast corner of this intersection the plaintiffs’ two lots are situated, fronting substantially on Third street on the north and Santa Fe avenue on the west. The allegations contained in the second amended petition and necessary to be noticed are that Third street had for more than thirty years been a public thoroughfare and highway, and had been established and recognized by the city as such; that prior to the first day of March, 1913, the Santa Fe railway had occupied and used most of Fifth avenue for many years as its right of way, and had laid and maintained several tracks thereon; that two plats of certain additions left a small unplatted wedge between the west boundary of plaintiffs’ lots and the east boundary of Santa Fe avenue, and extending north, but that Third street across this strip was used openly and notoriously and adversely, and had been recognized by the city and worked as a street for more than thirty years; that the terminal and Santa Fe companies had taken up Fifth street with an elevated structure or incline leading to the union station several blocks south of the plaintiffs’ property, including a concrete wall about seven feet high on a secure foundation built across Third street on a line with the west line of the plaintiffs’ property,
“thereby leaving to the said plaintiffs the only means they had of reaching the main portion or body of the business portion of the city of Wichita by going east to Mead avenue . . . and thence south along said tracks to Second street or Douglas avenue,”
or through an irregular alley with jogs in it east of their property. It was further alleged that the city, by ordinance, assumed the burden of the damages resultirig from such use of Santa Fe avenue, and by section 16 thereof vacated that portion of Santa Fe avenue crossed by Third street.
Assuming without deciding that the plaintiffs’ egress and ingress had been so obstructed as to entitle them to damages, if sought in time, and that such egress and ingress were thus obstructed by vacating and elevating Third street, it remains .to be considered whether they are barred by the statute requiring the filing of claims within four months, or by the statute of limitations, so that the court rightly sustained the demurred to their evidence.
Before discussing this it may be said that whatever the fact may be as to the wedge on the west of the plaintiffs’ property, and the claim that their lots were not contiguous to Santa Fe avenue at the intersection with Third street because of the continuation of such wedge north across Third street, we have no difficulty in concluding that all of Third street in that vicinity, including the alleged wedge, if any, on the east side of Santa Fe avenue, was abundantly shown by the evidence to have been for many years used, treated and recognized in all respects as a street, and must be so regarded now.
The plaintiffs insist that the city is estopped to avail itself of their failure to file a notice of their claim for damages, and say that the nature of the injury to the property of the plaintiffs is permanent, and the conditions created under the city’s own act and ordinance have become a permanent monument visible and apparent to the eye of the citizen of to-day; that the city by its own ordinance described the kind of obstruction to be placed in the street and helped to place it there; that it
Of course there can be no recovery in this case unless the action was brought within two years from the time when the cause of action accrued. (Civ. Code, § 17, Gen. Stat. 1915, § 6907.) The pivotal question therefore is, When did the cause of action accrue? Attention is called to the admission of the city that all travel on Third street east of the tracks and west of the tracks was closed about Ocober 1, 1912, and to the testimony of one witness that the entire travel on Third street was obstructed September 9, 1912. All of the defendants argue that as the ordinance not .only provided for a change of grade but vacated a portion of the street and provided for appraisers to fix the damages, the cause of action accrued when the ordinance vacating the street took effect. This was April 4, 1911, and the city contends that the statute began to run on April 5, when the ordinance was accepted. The action was begun September 10, 1914. This ordinance, as already suggested, not only vacated but “vacated and closed, for the use and benefit of said railway company” that portion of Third street forming the intersection with Santa Fe avenue. Upon the enactment and acceptance of the ordinance the intersection was no longer a street, as said in Tomlin v. Railway Co., 141 Iowa, 599:
“And, when a street is properly vacated, it ceases to be a street. . . . And, when a street ceases to be public by reason' of its vacation, it is private property within the meaning of the law, and a road located thereon does not entitle an abutting owner to damages.” (p. 601.)
While there is some dispute in the testimony as to just when the legal barricade constituted by the ordinance and its acceptance was reenforced by an actual physical obstruction, there seems to be no dispute that on September 9, 1912, the actual work was begun and a sign put up and the street marked “Street closed, Ordinance No. 4066.” This was a permanent appropriation and the subsequent completion of the superstructure simply added a physical to the legal barrier. At this point of time, when, the ordinance having been enacted and accepted, the actual work of constructing the barrier was begun and the public were notified by the posting up of a sign that the street was vacated, the plaintiffs’ cause of action accrued. They could
“The excavation at the corner oí plaintiff’s lots, at the intersection of Walnut and Tenth streets, was about six feet. This change in the surface of Walnut street made a corresponding change necessary in Tenth street, at the point of intersection. It also required the plaintiff’s sidewalk to be lowered to correspond with the change made in the surface of the street. Either such a change must follow, or travel from Tenth to Walnut street must cease; If Tenth street should be lowered at the point of intersection, plaintiff’s sidewalk must either be lowered, or access to it from the intersection must be by means of a stairway six feet in height. ... In our opinion, the change in the surface of Walnut street to the new grade, and the change of the sidewalk to correspond thereto, were parts of the same act, and that the damages thereto were indivisible, and were all recoverable in one action, although the work was not completed when the former action was brought.” (p. 39.)
In K. P. Rly. Co. v. Mihlman, 17 Kan. 224, it was ruled:
“Though from a completed wrong there afterward results new and unforeseen injury, there does not arise a new cause of action; and if a recovery has been had for the wrong prior to the occurrence of the new injury, no recovery can be had for such injury.” (Syl. ¶ 4.)
The cause was one for damages for trespassing by digging a ditch on the plaintiff’s land. In the opinion the court, speaking through Brewer, J., said:
*823 “True, the trespass has now resulted in greater loss than was then foreseen or estimated in assessment of damages; but an increase in the damages resulting, adds no new cause of action. ... So, for the trespass, the cause of action is complete at the time, 'and an increase in the resulting damages gives no new cause of action. There are cases, it is true, in which the cause of action is based upon the actual occurrence of damage, and dates therefrom, and not upon or from the prior act which resulted in the damagfe; but these are all cases in which the prior act is itself lawful, and furnishes no cause of action, or where- it is considered as a continuing act; as, where one excavates on his own land, and thereby withdraws the lateral support to his neighbor’s soil and buildings, the act is itself lawful, and only becomes the basis of a cause of action for damages when it actually results in injury; and the cause of action dates, not from the time of the excavation, but from the time of the subsidence.”
(p. 228.)
In C. B. U. P. Rld. Co. v. Andrews, 26 Kan. 702, it was held that—
“Where a railroad company obstructs an alley in a city, by building a railroad track through the alley, so as afterwards to make the alley useless as an alley, an abutting lot owner has the right, if he chooses, to consider the obstruction as a permanent taking and appropriation. . . . (Syl. ¶1.)
In Parker v. City of Atchison, 58 Kan. 29, 48 Pac. 631, it was held that where a permanent improvement is made by a city on the bank of a watercourse in such a way as to narrow the channel and injure private property on the opposite bank, an action therefor can be brought only within two years after the erection of such improvement. (Syl. ¶ 4.) In Hubbard v. Power Co., 89 Kan. 446, 131 Pac. 1182, it was held that damages by the erection of a dam, permanent in character, causing overflow to the plaintiff’s land accrued at the time of the .appropriation. In McDaniel v. City of Cherryvale, 91 Kan. 40, 136 Pac. 899, the action was one to recover for permanent injuries to plaintiff’s land by the pollution of $ creek which ran through it. In the opinion it was said:
“As the sewer system constructed by the city and the refinery constructed by the oil company were permanent in their nature and as the flow of the sewage and refuse from them was designed to continue indefinitely in the future a cause of action for permanent damages arose when the sewage and other impurities were first emptied into the stream.” (p. 48.)
(See, also, Marshall v. Railroad Co., 96 Kan. 470, 152 Pac. 634, and cases cited; Hardesty v. Ball, 43 Kan. 151, 23 Pac.
It is held, therefore, that for the reasons indicated the action is barred and the order sustaining the demurrer to the plaintiff’s evidence is affirmed.