112 Kan. 253 | Kan. | 1922
The opinion of the court was delivered by
The action was one to enjoin the city from passing an ordinance vacating an alley. A demurrer to the petition was sustained, and the plaintiffs appeal.
The alley privileges of the plaintiffs and the effect of the proposed ordinance are indicated by the sketch on following page.
Topeka avenue and Harrison street run north and south. Sixth street and Seventh street run east and west, and reach the principal business street of the city three blocks east of Harrison street. Topeka avenue is a boulevard, from which trucks, ice wagons, huckster wagons, and other delivery wagons are excluded. The lots designated on the plat by the name, “Bomgardner,” are occupied by the Bomgardner funeral home. This establishment includes a salesroom for funeral and burial supplies, a morgue, and a chapel, and uses from four to six motor vehicles of various kinds, which enter the funeral home garage from the alley on the south. The Foster lots are occupied by apartment houses which front Topeka avenue,
The city has been empowered by the legislature to vacate streets and alleyk When exercising this power, the city acts in a legis
The city has announced its purpose to pass the ordinance, and the parties have argued and submitted the cáse on its merits. To obviate the necessity of commencing another action, the court has considered the case on its merits, and what follows may be regarded as essentially declaratory.
The plaintiffs assert the ordinance is designed, not to accomplish a public purpose, but to confer a private benefit. The plaintiffs are not guardians of the public welfare. The state corrects abuses of corporate power, and unless the plaintiffs disclose a special private interest, distinct from that of members of the general public, they may not interfere.
The plaintiffs could not create for themselves vested interests in maintenance of public ways beyond this: that they have reasonable means of ingress to and egress from their lots; and. no closing of ways produces special private injury of which equity takes note until ingress and egress are unreasonably impaired.
In this instance the plaintiffs complain because there will be but two ways of getting to and from the rear of their premises, instead of three. The general allegations of the petition are in the nature of conclusions which are controlled by the facts alleged, and the facts disclose no more than the cutting off of a convenience.
The judgment of the district court is affirmed.