33 P.2d 151 | Kan. | 1934
The opinion of the court was delivered by
In a petition for rehearing the pipe-line company undertakes to limit an admission in its answer in such a way that, as against a motion for judgment on the pleadings, a question of fact would be raised by the general denial contained in the answer.
The motion for the writ alleged the highway commission was engaged in highway construction and improvement, had for the purpose procured rights of way, and the highway changes were necessary for public safety and convenience. The answer admitted “necessity for the construction of such highways, as alleged.”
The motion for the writ alleged plans and specifications for the highway improvement had been adopted, and the highways would intersect pipe-line rights of way. The motion described the specific pipe-line changes “necessary to be made.” The motion also contained the following allegation:
“It is necessary and in the interest of public safety that at such points of intersection the pipe lines and telephone lines of the pipe-line company be changed, lowered, encased or moved, all in accordance with the plans and specifications adopted and approved by the highway commission for the eomr pletion of said highway improvement.”
The answer admitted adoption of the plans and specifications, and admitted “such changes should be made if said new highways are constructed and opened to the public.” The answer also contained the following:
“Admits the necessity of changing, lowering, encasing or moving of defendant’s pipe lines and telephone lines, as alleged by plaintiff, if new highways are constructed and opened for the use of the public at the locations mentioned and described.”
Besides what has been said, when unqualified necessity for the pipe-line changes as a feature of highway construction was ex.pressly admitted, basis for exercise of the police power was admitted, and the pipe-line company would be in the same situation if its point on the pleadings were well taken.
The petition for rehearing contains nothing of substance which is new, and it is denied.