117 Kan. 455 | Kan. | 1925
The opinion of the court was delivered by
The action was one of mandamus, commenced by landowners against the city of Wichita and its officers, to compel restoration and maintenance of a bridge across a drainage canal constructed by the city. Plaintiffs recovered, and defendants appeal.
The canal divided land of plaintiffs’ ancestor, William Mathewson. Right of way for the canal, consisting of 4.7 acres, was deeded to the city by Mathewson, in consideration of the sum of $3,000 and an obligation stated in the deed, as follows:
“Party of the second part is to maintain a private bridge across the drainage canal, to be constructed on the above-described premises by said second party. Said private bridge for use of. grantors to be constructed within ninety days after the excavation for said drainage canal through the above-described premises is made, and said bridge to be constructed at such points as parties of the first part, their heirs, successors or assigns shall designate.”
In the year 1912, and pursuant to the deed, the city built a •bridge over the canal, which became unsafe early in 1923, and which was destroyed by flood later in that year.
The bridge was built upon land lying outside the boundaries of the city, and constituted no part of the canal. The canal was complete without the bridge, and fully satisfied the public duty to provide an outlet for storm water falling and collecting within the city. The bridge was not built pursuant to any public duty resting on the city to keep highways free from obstruction occasioned by construction of the canal. On the other hand, the bridge itself constituted a private viaduct whereby the landowner might pass from one side to the other of a tract of his land severed by the canal. The result is, the only relation the bridge could have to discharge of a public duty by the municipality lay in the fact that its erection and maintenance were designed to stand in lieu of statutory compensation for appropriation of the land.
The principle involved was stated and applied in the case of Haucke v. Morris County, 115 Kan. 659, 224 Pac. 64. In that case land was taken for a public road which divided a pasture in such a way that water for stock was wholly on one side of the road. In satisfaction of the landowner’s damages, the county board agreed to build and maintain a passageway for stock across the road. A passageway was installed which failed to serve the purpose intended, and the landowner sued for damages for breach of contract. It was held the contract was ultra vires. In the opinion the court said:
“While the board of county commissioners represent the county and are entrusted with the control of all its business and financial affairs, their powers are limited by statute. The enumerated powers do not authorize boards to enter into contracts to build and maintain runways for the convenience or benefit of landowners. (R. S. 19-212.) ' When a road is opened claims for damages may be considered and determined, and if the awards made are not satisfactory appeals may be taken to the district court. (R. S. 68-106, 68-107.) In the absence, of express authority the damages sustained by a landowner cannot be adjusted or allowed in any manner other than is prescribed by statute. Every landowner is bound to take notice of the powers conferred on the board, and cannot insist on the fulfillment of promises or agreements which the board was without authority to make.” (p. 660.)
The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment for defendants.