59 Kan. 416 | Kan. | 1898
John C. Douglass, who owned several lots in the city of Leavenworth, brought this action to prevent the completion of a union depot building and other improvements in connection therewith, which he alleged the Leavenworth Depot and Railroad Company was erecting and had erected at a
In pursuance of the ordinance, the union depot was located on a part of block 2, and on that part of Delaware Street north of block 2 and the south lot of block 3. In this way, the east end of Delaware Street, or that portion which extends from Main to Water Street, was occupied by the union depot building. In addition to this, the Company was authorized to occupy, and to lay tracks on and use portions of Water; Main, Cherokee and Choctaw streets. These privileges were granted upon the conditions that the Company should first acquire and dedicate for public, use as a
The improvements appear to have been made in accordance with the ordinance, and a new street was established between Main and Water Streets. Instead of Delaware Street extending between block 2 and block 3, as formerly, the new street was dedicated and established about twenty-five feet further north. In effect, the new street is an extension of Delaware street, and the only differences are that it is located about twenty-five feet further north and is only twenty-five feet wide. Lot 9 in block 3, owned by Douglass, extends from Main to Water Street, with two fronts, one on Main and the other on Water Street. It thus appears that, while a portion of Delaware Street south of block 3 was practically vacated by the City and is now occupied by the union depot building, another street has been provided, on the south end of the block, which affords access to Water Street and around to the Douglass lot on that street.
We learn from the petition and the plat attached thereto that while Water Street had been partly occupied by tracks and narrowed by the public improvements, Douglass still has ingress to and egress from his lot through the street. If Water Street had been en
It appears to be the theory of the defendant in error that, because the building is over and upon Delaware Street, or on ground that formerly constituted a part
The vacation of the street and the location and construction of the Union Depot were within legislative control, and, all having been done within the authority and requirements of the law, the buildings cannot be
If there had been irregularities in the exercise of the authority or in carrying it out, the laches of the plaintiff below would be a strong reason for denying him the relief which he asks. From the record it appears that the ordinance was passed June 28, 1886, and the original petition in this case was not filed until June 80, 1887. From the averments of the petition it is'shown that excavations were made and large retaining-walls built, and further that the depot building was largely constructed. It thus appears that the work had been in progress for a long time, and large sums of money expended, without reference or complaint by the plaintiff below. He could have instituted a proceeding when the ordinance was passed and before the Depot Company had made great expenditures upon the improvements. To allow him to sit silent for a year, while this expensive work was going on, and then, without giving explanation or-reason, apply for and obtain injunction or abatement, would be .inequitable and unjust. Courts of equity may, and frequently do, refuse relief after undue and unexplained delay, and when injustice would be done by granting the relief asked. Abraham v. Ordway, 158. U. S. 416.
We think the plaintiff below failed to allege any ground for injunction or abatement, and therefore the judgment of the Court of Appeals will be reversed and the judgment of the District Court will be affirmed.