State v. Paul

Apr 16, 1923
No. 24,728
Versions:

Lead Opinion

The opinion of the court was delivered by

Dawson, J.:

Counsel for appellants call our attention to a respectable line of decisions which hold that the state itself may be estopped to assert its rights in a public highway through nonuse, silence, apparent acquiescence, length of time, 'adverse possession, abandonment, long use at variance with the originally established road limits, and the like. This court has never given its sanction to any such doctrine. It is altogether out of accord with the theory of Kansas jurisprudence. Beginning with Wood v. M, K. & T. Railway Co., 11 Kan. 323, 349, there is a long and undeviating line of decisions down to and including In re Moseley’s Estate, 100 Kan. 495, 164 Pac. 1073, and The State, ex rel., v. Piper, 103 Kan. 794, 798, 176 Pac. 626, which hold that laches and estoppel do not operate against the state, that no procrastination of public officials prejudices the state and that their tardiness neither bars nor defeats the state from vindicating its sovereign rights, except where positive statutes so provide. That the state’s rights in a public highway differ in no material respect from any other of its manifold sovereign interests and concerns is also settled law. (See Eble v. The State, 77 Kan. 179, 184, 93 Pac. 803.)

The application is denied.





Rehearing

OPINION DENYING AN APPLICATION TO FILE A SECOND MOTION ' FOR A REHEARING.