Challiss v. Atchison Union Depot & Railroad

45 Kan. 398 | Kan. | 1891

The opinion of the court was delivered by

JOHNSTON, J.:

The record sufficiently shows, that at the time of the condemnation proceedings Luther C. Challis was the owner of lot 1, in block 23, in the city of Atchison. The perpetual use of this lot, or the north one hundred feet of the same, has been acquired by the company for the purpose of maintaining a union depot for the use of the railroads entering the city of Atchison, and for the convenience and accommodation of its citizens. Any question of the regularity of the condemnation proceedings has been set at rest by the action of Challiss in first appealing from the award of damages, and, second, by an acceptance of the $19,330 that was awarded and deposited by the company with the county treasurer as compensation for the property appropriated. Prior to the deposit and payment of the award, the city council vacated that portion of Third street on which lot 1 fronted, and Challiss claimed that in consequence of the vacation the title to that portion of the street passed to him, and not to the company which had acquired the abutting lot. The court held that Challiss was not the owner nor entitled to the possession of the vacated portion of the street in front of the lot in question, and granted an injunction restraining him from interfering with the company in the use and occupation of the same. The statute in relation to the vacation of streets in cities of the first class provides that —

“Whenever any street, avenue, alley or lane shall be vacated, the same shall revert to the owners of real estate thereto adjacent on each side, in proportion to the frontage of such real estate, except in cases where such street, avenue, alley or lane shall have been taken and appropriated to public use in a different proportion, in which case it shall revert to adjacent lots or real estate, in proportion as it was taken from them: Provided, That when, in the opinion of the council of any such city, it is necessary to re-open such street, avenue, alley or lane, they may order the same opened, without expense to the city.” (Gen. Stat. of 1889, ¶ 582.)

We think the court ruled correctly in excluding the plaintiff in error from the use and occupation of the disputed premises. The fee of the street was never in him, and hence, in a strict sense of the term, there was no reversion. The fee of the streets is in the county for the use of the public, and the control of the same has been placed by the legislature in the city. Aside from the accommodation of the general public, the streets afford access and frontage to the property which abuts thereon; and these rights are incidental and appurtenant to such property, and pass by any conveyance or by condemnation of the same. By the condemnation proceedings, the company acquired the perpetual use of the lot — a use which in its nature practically excludes any other use or occupancy. Through the appropriation of the lot, the company acquired the incidental and appurtenant rights in the street, and upon the legal vacation of the street, that portion situated in front of lot 1 temporarily became, as it were, a part of the lot, and passed to the company. The status of the vacated portion of the street cannot now be regarded as an open question in this court, and we need only follow a former decision, wherein substantially the same question -was considered and determined. (A. T. & S. F. Rld. Co. v. Patch, 28 Kas. 470.) In that case, Patch was the owner in fee of certain lots in the city of Topeka, and the city council passed an ordinance vacating the street in front of her lots. Afterward the railroad company appropriated the lots through-condemnation proceedings, and the report of the commissioners showed that they appraised the lots by name, without any survey or indication of what was embraced within the designation. The owner of the fee contended that as the street vacated was not named in or covered by the commissioners’ report, it became her property upon the passage of the ordinance vacating the street, and she asked for an injunction restraining the company from occupying such part of her property; while one contention of the company was that it passed to the adjacent lot-owners, and became in fact a part and parcel of the lots, and was therefore covered by and embraced within the condemnation of the lots. The court did not at that time determine whether upon the vacation of the street it reverted to the original proprietor or passed to the adjacent lot-owners. The latter view has since been adopted by this court. (City of Belleville v. Hallowell, 41 Kas. 192.) In the Patch case, it was held that if it passed to the adjacent lot-owner, then it became something in the nature of an accretion to and would pass in any conveyance of the lot, and that the statute providing for the vacation of the street was only a temporary cession of the street for public use, which might be resumed at any time whenever in the opinion of the council it was necessary to re-open the same. Mr. Justice Bbewer, who delivered the opinion of the court, stated that if the theory that the vacated street passed to the adjacent lot-owner was adopted —

“It would seem from the proviso to the section we have quoted that there was no absolute cession of the property to such adjacent lot-owner, but only a provisional and temporary giving up of the public use; for the lot-owner takes it subject to the right of the city to re open it without expense. In other words, the city permits the lot-owner provisionally and temporarily to hold and occupy the portion of the vacated street in front of his lot. Under these circumstances, we think it fair to consider that it becomes, as it were, a part of the lot — something in the nature of an accretion to it; and if so, then any conveyance of the lot takes with it this attached portion of the vacated street.”

Following the rule of that case, which is decisive of this, we must hold against the contention of the plaintiff in error. The fee of the street not being in the owners of the adjacent lots, as in Massachusetts, the case of Harris v. Elliott, 10 Pet. 25, and some other cases cited, do not apply here.

Something is said against the validity of the vacation of the street, but it follows from the decision made that the private rights of plaintiff in error are not so infringed as to warrant him in raising that question. Neither is he authorized to appear in behalf of the public; and hence, we will not enter upon a consideration of the validity of the vacation ordinance, nor the right to use the vacated portion of the street for the contemplated purposes.

The judgment of the district court will be affirmed.

All the Justices concurring.