City of Osage City v. Larkin

| Kan. | Jul 15, 1888

Opinion by

Holt, C.:

Both of the defendants allege several errors at the trial. We will premise this opinion by stating that under the facts in the case as shown by the record, if the city is liable by reason of its negligence in permitting the tumbling-rod of defendant Adams to remain as an obstruction in an alley, then he would also be liable. Of the many assignments of error, the only ones we care to notice are those referring to the rulings upon the admission and rejection of evidence, and the instructions to the jury relating to the question whether the place where the little girl was hurt was in fact an alley in the city of Osage City which the public had the right to use. The filing and recording of the plat of the 1. Alley open for public use. duly made, acknowledged and certified, with-oufc further action on the part of the city made this parcel of land an alley, and vested the fee in the county for public use. The defendants argue that although it might be an alley, yet the city had never attempted to open and improve it or mark its boundaries, and therefore that they are not liable for injuries that occurred in traveling over it. They claim that until a city attempts to make streets or alleys suitable for public travel, and thus invites the public to use them, it is not liable for injuries upon such unimproved or unopened streets or alleys; and further, that when it does improve them, it is only compelled to improve those parts of the street or alley which are necessary for traveling; and they cite a list of authorities to sustain their contention. They claim that in this instance one of the defendants, Asher Adams, owned the land on both sides of this alley; that it was obstructed by the road-beds of the A. T. & S. F. railroad so as to render it practically impassable for general travel, and therefore it was used solely for his own benefit as a means of ingress to and egress from his elevator and hay-press, and as he never fenced it or laid it off, but used it indiscriminately with the other part of the block south of the railroad, it never acquired the public character usually given alleys.

They claim further that a city is not under the same obligations to open and improve an alley that it is a street; that the object and purpose of a street is for the general travel of the public, while an alley is used primarily for the convenience of the abutting land-owners, and when the land abutting an alley is all owned by one individual, he has the right to obstruct the same and use it as his own property; and they cite a list of Michigan authorities referring to alleys in the city of • Detroit.

We cannot agree with the claim of defendants, nor do we believe that the authorities they cite sustain the propositions advanced. Alleys in the city of Detroit were not dedicated in the way that alleys are in Kansas. The dedication of an alley in this state has the same force and is in the same terms as the dedication of a street. It may be, and probably is a fact, that the interests of the public do not require that an alley should be kept in the same condition as a street, and it is probably true that alleys are largely used for the convenience of the abutting lot-owners, and certainly have less use as a public thoroughfare than the streets in a city, yet they are 2' pSíbie^yet™" dedicated to public use; public money may be expended upon them to improve them, and they can be used by the public generally; the abutting lot-owners have no such control over them as to exclude the general public from their enjoyment, and an accident happening in an alley used for public travel occasioned by an obstruction therein, may make the city liable for the injury so sustained.

In this instance it is claimed that this alley was not publicly and formally opened. Our statute does not require any formal opening of a street or alley where there has been a dedication; the simple’ fact of dedication makes it a public way. It is claimed, however, that until there is some work done to invite the public to travel over a street or alley, the traveler uses the street or alley at his own peril. We think that contention, whether sound or not, has no bearing on this case. The testimony shows that this portion of this alley was comparatively smooth ground, and that this obstruction was not one that existed from the natural formation of the land, but was placed there by the defendant Adams, and allowed to remain for years with the knowledge of the city of Osage City. It was a dangerous obstruction placed upon an alley dedicated to the public, and while it would not probably have been permitted to remain on a publie street or alley which was in constant use by the public as a thoroughfare, yet it was upon public ground on which the public had the right to travel. It is this particular fact in the case that makes the authorities cited by the defendant inapplicable.

It was not the failure of the city to open the alley and keep it in repair that the plaintiff complains of as causing the injury sustained, but it was its negligence in allowing this trap to remain for so long a time in an alley dedicated ■ to the public, and over which any person had the right to travel. This child, under nine years of age, did not sustain the injury complained of by reason of the natural roughness 3. cMneryin3 ana" alley — liabil-sorafiSfSies. and unevenness of the ground, but by falling upon . . . & , . ’ a dangerous piece ot machinery which had been permitted to remain uncased and unprotected for years an city. This action was tried upon this theory, and the instructions given and rulings upon the introduction and rejection of evidence were all consistent with it. This was correct. We find no material error in the trial of this case, and recommend that the judgment be affirmed.

By the Court: It is so ordered.

All the Justices concurring.