82 Kan. 234 | Kan. | 1910
The opinion of the court was delivered by
This action was brought by J. B.
An abutting lot owner has an interest and ownership in the shade trees planted and growing in the parking in front of his lots. An assessment may even be made against his lots to pay for the charge of planting and maintaining shade trees in the street in front of his premises. (Heller v. City of Garden City, 58 Kan. 263.) An owner holds his right to the trees planted to adorn and improve his lots subject to the paramount right of the public to the use of the streets, but it is an ownership which gives him a standing in court to prevent an unauthorized and unjustified destruction of the trees by officers or others. (Paola v. Wentz, 79 Kan. 148.) The city authorities are, of course, not to be hampered in the improvement or control of the streets, and when they decide that a tree or other obstruction is a nuisance
“It is clear, we think, both upon reason and authority, that when a municipality undertakes to destroy private property which is not a nuisance per se, it then transcends its powers and its acts are reviewable by a court of equity.” (Page 244.)
In this case there was no proof of an ordinance authorizing the mayor or street commissioner to change the grade of the street or to cut down the trees and remove obstructions from streets, and so far as the abstract shows their action in this respect war without authority, if they had reached the defense and offered testimony they possibly might have produced an ordinance giving them general authority to grade and improve streets. If it be assumed that such authority existed, it is one which must be exercised in good faith by the officers. Indeed, there is testimony that the' officers were actuated by malice in the action taken, and if they were vested with any discretion to decide upon the removal of the trees such discretion was in fact abused. In such a case the owner is entitled to recover damages from the one who destroys his property. In this instance the trees appear to have been destroyed against the will of the city council and in spite of its order.
“Whether the particular thing should be done by ordinance or resolution depends upon the proper construction of the charter and the forms observed in doing the act. An ordinance prescribes a permanent rule of conduct or government, while a resolution is of a temporary character only. It may be stated as a general rule that matters upon which the municipal corporation desires to legislate must be put in the form of an ordinance, while all acts that are done in its ministerial capacity and for a temporary purpose may be put in the form of resolutions.”
It would seem that a ministerial act or a mere detail in the execution of a power or provision for some temporary matter, applicable alone to a single and individual case, might be accomplished by means of a resolution.' So it has been decided that a resolution for the purchase of apparatus for a fire department would bind the municipality. (Green v. City of Cape May, 41 N. J. Law, 45.) A resolution has been held to be sufficient to fix the amount of a license fee previously authorized. (The City of Burlington v. The Putnam, Insurance Company, 31 Iowa, 102; Arkadelphia Lumber Co. v. Arkadelphia, 56 Ark. 370.) It has been held to be sufficient to direct municipal agents to make proper
The judgment is reversed and the case remanded for further proceedings.