212 P.2d 218 | Kan. | 1949
The opinion of the court was delivered by
This was an action to enjoin the city of Topeka from certifying to the county clerk of Shawnee county for collection, a certain assessment made in connection with the curbing, guttering and paving of a street. The city appeals from an adverse judgment.
There is no dispute of fact. From the pleadings and a plat attached to the city’s answer, we glean the following: The city initiated proceedings to pave the six hundred block on Warren avenue. While there are some differences in measurement between the length of lots and lands at the north and south boundaries, they are not material to the issues presented and will not be noticed. The figures hereafter used are a close approximation and show the point in con
In his petition plaintiff pleaded at length that he owned a described tract of land which had never been platted, bounded on the west by Oakley avenue, on the north by Sixth street, and on the east by Emery’s subdivision, describing the geographical situation as to his land and the lots abutting Warren avenue and alleging that his land did not abut Warren avenue and that he did not have access thereto from his lands. He alleged that the city had passed an ordinance to pay for the improvements, making a special assessment of $250.89 upon the east 34 feet of his land, and that the ordinance unlawfully sought to join his unplatted land lying west and beyond the platted lots abutting Warren avenue with said platted lots and unlawfully subject his land to the special assessment, and that the special assessment was unlawful as against his land. He prayed that the city be enjoined from certifying to the county clerk the assessment against his land or from attempting to collect the assessment or any part thereof as against him or his land, and for costs.
With the issues thus joined the plaintiff filed his motion for judgment on the pleadings, and upon consideration the trial court sustained the motion and permanently enjoined the city from taking any action to collect the assessment. In due time the city perfected its appeal to this court.
Before taking up for consideration the contentions of the appellant and the response of the appellee, we take note of the fact that over the years the statutes providing for the paving of streets in different classes of cities have made varying provisions as to the real estate subject to special assessment to pay the cost thereof, and that many of our decisions with respect thereto have dealt with lands adjacent to railroad rights of way, irregular tracts, tracts not surrounded by streets and other situations not necessary to detail. Owing to diversity in geographical situations and of statutes applicable a review of these statutes and decisions would unduly extend this opinion, and when made, would hardly be decisive of the questions now involved. We note further that in 1923 these various statutes were considered and revised, the revision appearing as R. S. 1923, ch. 12, art. 6. Such amendments as have since been made to the above article do not affect the question here presented.
The portion of the above chapter presently involved is G. S. 1935, 12-601, which reads:
“Whenever any street or avenue in any city shall be graded, regraded, paved, repaved, curbed, recurbed, guttered, reguttered, macadamized, remacadamized, or otherwise improved, the cost of such improvement shall be paid by and assessed to the property on each side of said street or avenue to the middle of the block.”
We are not advised as to what arguments appellee presented in the trial court to obtain judgment in his favor, but in this court he relies solely upon Atchison, T. & S. F. Rly. Co. v. City of Hutchinson, 130 Kan. 625, 287 Pac. 587. Reference to that opinion will disclose that, as platted, certain rectangular tracts bearing no block
We need not discuss whether the above cited case was soundly decided insofar as it was held that the lots south of the railway right of way constituted a block. The case would be controlling as an authority here only if we were to hold that the platted lots west of Warren avenue constituted a block. As has been indicated above, a review of our decisions will show that the definition of a block was largely dependent upon the facts of the case as measured by the statute being applied. In Bowlus v. Iola, 82 Kan. 774, 776, 109 Pac. 405, it was said:
“The question is, What constitutes a ‘block’ within the meaning of the statute?
“The appellants argue that since the ordinary method of platting is into lots and blocks the legislature must have had in mind a block made by platting, and hence that the designation given by the donor of the plat controls. The premise is sound enough, but the conclusion does not follow. According to all the dictionaries and the popular understanding everywhere a block is a portion of a city surrounded by streets. In common practice city plats are made to conform to this understanding, and the legislature had in mind blocks so constituted, and not tracts- arbitrarily designated as blocks by the donor of a plat. This interpretation accounts for the difference between the method of assessing the cost of street improvements and the method of assessing the cost of alley improvements. An alley is a narrow way designed for the special accommodation of the property it reaches. Consequently the cost of improving an alley is laid upon the abutting lots or ground. Streets and avenues are designed for general public travel, and consequently the cost of improving them is extended to the center of the tracts bounded by such thoroughfares. These views find support in the opinions delivered in the following cases: City of Ottawa v. Barney, 10 Kan. 270; Olsson v. City of Topeka, 42 Kan. 709; McGrew v. Kansas City, 64 Kan. 61.”
The statute quoted above is the only one applicable to the situation presented by the. record before us. Under it the cost of the improvement shall be “paid by and assessed to the property on each side of said street or avenue to the middle of the block” (emphasis supplied). In that statute nothing is said about the component parts of the block, that is whether the lands contained therein are platted or unplatted or both. Although our attention is directed to G. S. 1935, 12-606, an examination shows it applies to unplatted lands “abutting” on the improvement or to an improvement which runs partially through platted ground and partially through unplatted ground, a situation not presented by the record before us.
Under the facts disclosed by the record we have a rectangular tract bounded on the west by Oakley avenue, on the north by Sixth street and on the east by Warren avenue, the lands enclosed constituting a single area of real estate not divided by any street or alley, even though the ownership of the components was in part by platted lots and in part by unplatted land described by metes and bounds. Under the ordinary and commonly accepted definition (see Webster’s New International Dictionary, second edition, “block . . . 15”) such a tract constituted a block, and we hold that such enclosed tract was a block within the purview of the statute.
It follows from what has been said that the action of the city in making the assessment was legal and proper and that the trial court erred in rendering judgment in favor of the plaintiff enjoining the city from collecting the assessment against his land. That judgment is reversed and the cause is remanded to the trial court with instructions to set aside and hold for naught the judgment appealed from and to render judgment in favor of the city.
