103 Kan. 29 | Kan. | 1918
The opinion of the court was delivered by
This was a suit to enjoin defendants from grading and ditching a road on land claimed by the plaintiff.
The plaintiff is the owner of the west half of a section of land in Center township, Pottawatomie county, which land is bounded on the west by a public road. The defendants are the officials of Center township. They removed the plaintiff’s fence on the assumption.that it was set too far to the west, and'that it encroached on the public highway. The defendants were about to grade the road and to construct a ditch at the side of it, when plaintiff temporarily stopped that project by this suit.
It is next urged that the court erred in excluding from evidentiary consideration an agreement between plaintiff and his neighbors on the west and northwest establishing the southeast corner of section 31, and the southwest corner of section 32, in township 7, range 11 east, and also the northeast comer of section 6, township 8, range 11 east, and the northwest corner of section 5, township 8, range 11 east — the latter being the principal and controlling point in dispute in this lawsuit. How this agreement could interfere with the right and duty of the defendant township officials to grade and ditch the road as established by the county surveyor twenty years ago is not clear. .This agreement was made on June 3, 1916, while this lawsuit was begun on May 10, 1916, and it had no bearing whatever on the question whether the township officials were within their powers in grading and ditching the road. Even if the agreement had been made before this lawsuit arose, it would only bind the parties and those who claim under them. It would not, and could not, bind the public and the officers of the public. (Gemienhardt v. Ward, 101 Kan. 250, 251, 252, 167 Pac. 1141.)
Plaintiff’s last contention is that the judgment was contrary to the evidence. That contention is without merit. Since
It is so ordered.