Bissey v. City of Marion

Citations

• 104 Kan. 311
• 178 P. 611
• 1919 Kan. LEXIS 253

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Obstruction op Public Street — Joinder of Plaintiffs. Several persons, each of whom has a special interest in a street’s being kept open for traffic, may join in an action for that purpose.</p> <p>2. Same — Joinder of Plaintiffs — Parties Sustaining Special Injury. Where a bridge over a creek where it is crossed by a city street is suffered to remain in such condition as not to be traversable, the owner of a tract of land on one side of the street and on both sides of the creek sustains an injury therefrom different in kind from that of the general public, and may therefore maintain an action against those responsible for that cpndition. This is not true, however, of one who owns a tract on a cross street opposite the termination of the street first referred to.</p> <p>3. Sam:e — Action for Mandatory Injunction• — Petition States Cause of Action. Where a petition alleges that a bridge on a public street has been allowed to remain for some ten years in a condition such as to render it unfit for use, an allegation that the action in that regard of the officers having control of the matter was arbitrary, and constituted an abuse of discretion, is sufficient, as against a demurrer, to raise an issue of fact.</p> <p>4. Same — Funds -with Which to Remove Obstruction. In such a case the question whether sufficient funds were available to enable the officers to perform the acts demanded of them is one proper to be raised by answer.</p> <p>5. Same — Action to Remove — Injunction or Mandamus. Assuming that an adequate remedy was afforded by mandamus, the fact presents no obstacle to the controversy’s being settled on its merits in an action for a mandatory injunction.</p> <p>SYLLABUS BY THE COURT.</p> <p>Demurrer to Petition — Overruled as to One Plaintiff — Sustained as to the Other. Where a petition of two plaintiffs states a cause of action as to but one of them, it is proper practice to overrule a general deipurrer thereto as to him, an