Arnold v. Weiker

The opinion of the court was delivered by Martin, C. J. : I. The first and principal question in this case is whether, by the platting of the town site of Peace, the strip of ground lying next south of the depot grounds was shown to be intended for sale, or to be reserved for public purposes, or for further platting or use by the original proprietor. We think it quite clear that it was devoted to public use, although not named as a street, nor crossing the other streets and alleys at right angles. It was evidently designed to furnish access as a street or highway to the depot grounds, not only for the owners of property abutting on the strip, but for all the people of that part of the town site lying south of the railroad and between Broadway and Tenth street, and also as the means of ingress to and egress from Broadway and Tenth streets for the property on Jackson street, and also that abutting upon the strip between Seventh street and Broadway; and we think that this sufficiently appears without the use of any evidence other than that furnished by the plat and the dedication, and therefore the question as to the admissibility of evi [516] dence of dedication by user and acquiescence will be immaterial. A contrary construction would be inconsistent with §§ 1,5, 6 and 7 of chapter 78, General Statutes of 1868, concerning the plats of cities and towns, and also with the case of Hitchcock v. City of Oberlin, 46 Kas. 90, 94, 95, and the authorities there cited. It seems incredible that a town-site proprietor, intending a strip rhomboidal in form for sale or for further platting or private use, would not inclose it by lines on both sides and at each end, as in the case of the depot grounds. In the present instance there is but one solid line, and this is necessary to mark the southern boundary of the depot grounds. The lines on the south side of the strip are fragmentary, being only the northern boundaries of lots and blocks, and the strip opens into Broadway at the east and Tenth street at the west, and Seventh, Eighth, Ninth and Jackson streets open into it from the south. Under these circumstances no purchaser of a lot abutting on the strip could reasonably anticipate that all these streets were blockaded, and access cut off on the north side by a private reservation extending across the streets and the ends or sides of the lots. .II. The plaintiff challenges the validity of ordinance No. 136, on the ground that no provision was made for the assessment and payment of damages to property owners by reason of the vacation of said strip lying north of said lots 114 and 116. But whether damages are recoverable or not in such case, or the assessment and payment thereof conditions precedent to the taking effect of the vacation, -we think it unnecessary to decide. (See ¶ ¶ 578, 579, 580, 582, 811, and 980, Gen. Stat. of 1889, as to vacation of streets and alleys by cities of the first, second, and third classes, respectively.) The ordinance was passed and [517] approved in 1883. The city, the owners of lots 114 and 116 on one side, and the railroad company on the other, treated it as valid. The railroad company let and leased its part of the vacated ground to Millard; and the improvements were made and Millard’s interests mortgaged to Weiker in 1884. In 1886, Millard conveyed to Coulter and Oliver, and Coulter assumed the mortgage indebtedness then owing by Millard to Weiker. In 1888, Rachel Arnold, J. 0. Stow, J. R. Coulter, and J. W. Oliver, partners as J. 0. Stow & Co., obtained a quitclaim deed for the strip from the town and land company, which had neither title nor possession to convey. In 1889, Coulter and Oliver mortgaged their interest to said Rachel Arnold, but it does not appear that Coulter had any interest except what he obtained from Millard in 1886, and that was subject to the payment of Millard’s indebtedness to Weiker, as before stated. So far as shown, Rachel Arnold has no standing whereby she may contest the validity of the ordinance. If it were conceded to be void, we do not see how she could profit by the concession. III. It was claimed by Coulter in his answer that the title to the strip of ground had failed, and that there was no consideration for his assumption of Millard’s indebtedness to Weiker, and he prayed judgment against Weiker for $1,615.55, alleged to have been paid by him on the indebtedness. The plaintiff interposed no plea of payment, but she claims the right to make any defense which Coulter might have made as to the amount due, and that she was precluded by the rulings of the court from so doing. The grounds upon which the court below sustained objections to some of the questions asked Coulter as to payments made, are not apparent, but the trial was by [518] the court-, and, notwithstanding the adverse rulings, Coulter did testify to the several payments, showing that they amounted to $1,800, which was more than he had alleged, and we think it sufficiently appears by admissions and by Coulter’s testimony that he had paid one of the notes and two years’ interest on the other two, being $439.84 interest, or $1,814.34 in the aggregate; and the court seems to have taken all this into consideration, and, therefore, the judgment against Coulter is not too large, and the plaintiff, as the holder of the junior mortgage, has no legitimate grievance. Holding these views, we deem it unnecessary to discuss the motion .of the defendant to dismiss for want of necessary parties. The.judgment of the district court will be affirmed. All the Justices concurring