City of Emporia v. Gilchrist

37 Kan. 532 | Kan. | 1887

Opinion by

Holt, C.:

The judge refused to dissolve the temporary restraining order. In this we believe he erred. From the admissions made by plaintiff on the trial, and the evidence introduced, it appears to be well established that the raised platforms or advances to plaintiff’s barn were obstructions to a free and safe passage along the sidewalk. The plaintiff himself, in giving his evidence, says:'

“In getting up to the inclines, you step to the top of the curb, and then one step to the top of the incline;” and “there was danger of one stumbling and falling if he did not keep his eyes open.”

The business interest of an individual ought not to be set above that of the public. The sidewalk was for the comfort and convenience of the public generally, not alone for the benefit of plaintiff. From the testimony it is shown that the inclines might have been built within plaintiff’s barn, perhaps at some additional expense, and when completed might not have been as convenient for plaintiff’s use as they would have been if allowed to remain, yet they would have furnished a reasonably safe means of ingress into and egress from his barn. After the notice had been served he had ample time to prepare for such change. The city, in accordance with its ordinances, had notified plaintiff that he must tear up and rebuild the sidewalk in front of his property, more than three months before it commenced to remove it. It was a much longer time than the ordinance required, and it was not only the right of the city under the ordinance to rebuild, but it was its duty to see to it that a sidewalk pronounced unsafe should be replaced by a safe one.

Ordinarily, where municipal officers or boards are authorized by law to exercise their discretion and judgment in establishing or repairing streets and sidewalks, the courts, in the absence of fraud, will not interfere with their action, while they continue within the scope of the powers conferred upon them by law. In this case it appears that ample authority was given the committee by the ordinances of the city, and that it had good reasons for pronouncing the old sidewalk unsafe and ordering a new one built. Under the evidence introduced the court should not have interfered with the city in removing the sidewalk. (High on Injunctions, 1270.)

It is not an argument worthy of consideration that because the inclines had been there for a long time, for that reason they should be allowed to remain. But the plaintiff says that there could have been no harm done to the public under the order of the court; that plaintiff only asked that they be retained until the city had its material upon the ground ready to build the new walk before it removed the old one. We think there is not much force in this objection. The city has the right to build its own sidewalks in its own way, after it has given the lot-owner ample opportunity to put in the sidewalk abutting upon his property. If he fails to avail himself of the privilege extended to him by the city, by putting in sidewalks in his own way within the time provided by the ordinance, then he cannot be heard to complain if the city puts down the sidewalk in front of his property in a reasonable time. For the reasons given herein, we recommend that the order of the district judge refusing to dissolve the temporary restraining order be reversed.

By the Court: It is so ordered.

All the Justices concurring.