Olsson v. City of Topeka

42 Kan. 709 | Kan. | 1889

Opinion by

Holt, C.:

The plaintiffs filed their petition in the district court of Shawnee county, praying that the defendants be enjoined from taking steps looking to the collection of a special assessment, or threatened assessment, on their property near Sixth avenue in the city of Topeka, for the improvements being made thereon. The petition states that the plaintiffs are the owners of certain lots, describing them, in the city of Topeka, on Topeka avenue, Van Burén, Tyler, Polk and Taylor streets; averring further, that the city of Topeka had entered into a contract to grade, curb and pave Sixth avenue from the west line of Jackson street to the western boundaries of the city; that it made such contract without authority, and also that the lots above named do not abut upon Sixth avenue and are not benefited by the grading, curbing and paving of said avenue, and that the several lots named are not liable for the costs of such improvement. They also further allege that the city council directed a special assessment and levy to be made; that the city clerk had threatened and was about to certify said special assessment to the county clerk of Shawnee county to be placed on the tax-rolls of said county, etc. A temporary restraining order was issued by the probate court of Shawnee county on August 30, 1888; on the 6th day of September a motion was made to dissolve such order, giving as a reason therefor that the allegations in plaintiffs’ petition were untrue, except as specially admitted in defendants’ answer. This motion was heard upon the 7th, upon oral testimony, and the injunction dissolved; the plaintiffs are here as plaintiffs in error.

The plaintiffs complain, first, that the court allowed oral testimony to be introduced, at the hearing of the motion; second, that the city engineer had made no special detailed estimate of the cost of grading, curbing and paving this avenue or street; third, that the court erred in holding that the lots in question were liable for improvements upon a street upon which they did not abut.

Concerning the first objection, it appears that both parties met and announced themselves ready for trial, and although the plaintiffs objected to the introduction of oral testimony, they did not ask for a continuance; and oral evidence was offered both by plaintiffs and defendants on the hearing of the motion. It is doubtful whether this objection is fairly raised by the record; in any event, after the plaintiffs themselves offered oral testimony without any application for a continuance, or any showing that they were prejudiced in any way by the ruling of the court, we are of the opinion that whatever ground the plaintiffs may have had for error in this proceeding was waived; it is, not in their mouths to claim now, under the circumstances, that the court erred in proceeding with the trial after they had announced themselves ready.

The second objection is, that there has been no detailed estimates of the grading, curbing and paving of this avenue. There had been estimates submitted by the city engineer stating the number of yards to be graded and the cost per yard, number of yards to be paved and cost per yard, number of lineal feet of curbing and the cost per lineal foot, and of the engineering and other expenses. The only concern these plaintiffs could have in 'the estimates made by the city engineer is in the paving and curbing of the avenue in question. The engineering and grading were to be paid out of the general-improvement fund by the city, and we therefore shall only examine the estimates made for paving and curbing. Part of the avenue was to be paved with stone and asphalt, and the estimate of the city engineer on that part to be thus paved was 2,633 square yards, at a cost of $2.85 per square yard; curbing, 600 lineal feet, at 85 cents per lineal foot; the number of yards is given and price per yard, and the aggregate cost of paving; the number of lineal feet of curbing is given, and price per foot, and aggregate amount. We would suppose this was sufficiently detailed and definite, but the plaintiffs say that it was specified it should be of stone and asphalt, which is an uncertain if not an improbable description of the paving of the street. We cannot agree with them in that contention. The ordinary paving called asphalt is the overlaying of a mixture of asphalt, lime and sand upon a body of rock or stone, and we do not believe that anyone could have been misled by the statement that it was stone and asphalt. Part of the estimates provided that the paving should be of red cedar wood, and the number of square yards, giving cost per square yard, and aggregate amounts, and also the curbing as above set forth.

The plaintiffs cite us to Gilmore v. Hentig, 33 Kas. 175; and Hentig v. Gilmore, 33 id. 234. In those cases the estimates were held to be insufficient; they were not made under oath, as provided by law, and although they gave the number of feet and price per foot of paving, they failed in any way to intimate what the pavement should consist of, whether wood, stone, stone and asphalt, plank, brick, or concrete, and it was there held an insufficient estimate under the law. But in this instance the estimate is under oath, the area and cost are given, and in addition the kind and nature of paving is set forth. The reasons given in those eases why the estimates were not sufficient, have been complied with in this instance. We believe the estimates were sufficient under Comp. Laws of 1885, ch. 18, § 22.

The further and last objection we shall notice is, that these lots do not abut upon the street to be paved and curbed, and therefore are not liable for the expense of paving and curbing. It is not necessary that they abut upon the streets to be improved. (City of Ottawa v. Barney, 10 Kas. 270.) The statute has provided in what way streets shall be improved, and what property is liable for the improvement. Section 4, chapter 99, Laws of 1887provides : “For all paving, curbing and guttering of the streets and alleys, assessment shall be made for the full cost thereof on each block separately, and all lots or pieces of ground to the center of the block on either side of each street or avenue the distance to be improved.” This provision has been construed in Blair v. City of Atchison, 40 Kas. 353. It appears in evidence that these lots, while they are within that half of the square next to the street to be improved, are separated from that portion of the lots nearest the street by an alley running through the square, but not through the center thereof, and the lots in question, although they were on the other side of the alley from the street improved, were in that half of the square next to it. This brings them within the rule enunciated in Blair v. City of Atchison, supra. To break its force the plaintiffs contend that a block is any compact body of land in a city surrounded by any public ways, whether they be streets, avenues, lanes, or alleys, and that the part of the city inclosed by streets should be denominated a square as distinguished from a block. They further say this construction could be readily applied in Topeka especially, for the reason that the squares have not been numbered here as blocks as they have been in most of the other cities of the state. The statute provides that words shall be construed according to the approved usages of the language, except technical words and those that have acquired a peculiar meaning, which shall be construed according to their peculiar meaning. (Comp. Laws of 1885, ch. 104, § 1.) We have no hesitation in saying that the ordinary signification of a block in a city is understood to be a part of the city inclosed by streets. It is certain that a block has no such technical and peculiar meaning in Kansas, as contended for by plaintiffs; on the contrary, its ordinary signification has been approved and emphasized in this court. In the case of City of Ottawa v. Barney, supra, Judge Brewer, in rendering the opinion of the court, says: “A block is defined by Webster as ‘a'square or portion of a city inclosed by streets, whether occupied by buildings or composed of vacant lots.’ It is a portion of ground surrounded by streets.” We are well satisfied with the definition, and taking it as our guide in this decision, it follows as a matter of course that the word square, used by plaintiffs, is synonymous with block, and therefore these lots in question lying on that part of the block nearer this avenue than to the street on the opposite side thereof, are subject to taxation for these improvements, without any reference whatever to where the alley runs through the block or square.

The judgment of the court in dissolving the restraining order was correct, and we recommend that it be affirmed.

By the Court: It is so ordered.

All the Justices concurring.