34 Kan. 509 | Kan. | 1886
The opinion of the court was delivered by
This was an action brought in the district court of Bourbon county, by Warren Mikesell against J. A. Durkee and W. H. Stout, partners as Durkee & Stout, to perpetually enjoin the defendants from excavating in a public street in front of the plaintiff’s lots in Fort Scott, Kansas, and from constructing and operating a railroad in such street and
The city of Fort Scott is a city of the second class, and the act (Comp. Laws of 1879, ch. 19) relating to such cities provides, among other things, as follows: The mayor and council shall have the care, management and control of the city, and the power to enact ordinances, not repugnant to the constitution or laws of the state, such as they may deem expedient for the good government of the city, and “the benefit of trade and commerce, and the health of the inhabitants thereof, and such other ordinances, rules and regulations as may be necessary to carry such power into effect,” (§ 31,) and are empowered “to open and improve streets, avenues and alleys, make sidewalks and build bridges, culverts,” etc., (§ 32, subdiv. 2;) “to open, widen, extend, or otherwise improve any street, avenue, alley, or lane,” (§54;) to “prohibit and prevent all encroachment into and upon the sidewalks, streets, avenues, alleys, and other property of the city,” (§55;) and to regulate “the building of bulkheads, cellar and basement-ways, stairways, railways, . . . and all other excavations through and under the sidewalks, or along any streets of the
“Sec. 64. The council shall have power to regulate levees, depots, depot grounds, and places of storing freight and goods, and to provide for the passage of railways through the streets and public grounds of the city; also to regulate the crossings of railway tracks, and to provide precautions and prescribe rules regulating the same; and to regulate the running of railway engines, cars and tracks within the limits of said city, and to prescribe rules relating thereto, and to govern the speed thereof; and to make any other and further provisions, rules and restrictions to prevent accidents at crossings, and on the tracks of railways, and to prevent fires from engines.”
“Sec. 67. For any purpose or purposes mentioned in the preceding sections, the council shall have power to enact and make all necessary ordinances, rules, and regulations; and they shall also have power to enact and make all such ordinances, by-laws, rules, and regulations, not inconsistent with the laws of the state, as may be expedient for maintaining the peace, good government and welfare of the city, and its trade and commerce; . . .”
Section 17 of the act of 1883 relating to railroads reads as follows:
“Sec. 17. Any person, upon written permission given by the board [of railroad commissioners], may exercise in the same manner and to the same extent as is now enjoyed by railroad companies the right of condemning and appropriating land, and laying out and constructing any spur, switch or railroad track thereover, and connecting the same with any railroad already constructed; and the right to use such spur, switch or track shall be public, at rates and on terms and conditions such as the board shall prescribe, if the parties interested cannot agree.” (Laws of 1883, ch. 124, §17.)
“ Under existing laws no city has any power to confer upon any private person any right to use a street, or any portion of the same, for the purpose of a cellar-way, or for any other purpose, except for passing and repassing.”
Of course where a city has given permission to construct a public railroad upon a public street of the city, injunction will not lie to restrain its construction or operation; and there might be cases where a public railroad has already been constructed and is in operation without any permission from the city, that injunction would not lie to restrain its operation. But neither of these is the present case. Also, under § 17 of the act of 1883 relating to railroads, any person, as well as a corporation, may construct a public railroad; but in order that a single person, or persons not organized into a corporation, should have authority to construct a public railroad, he
The order of the court below dissolving the temporary injunction will be reversed, and the cause remanded for further proceedings.