City of Kansas v. Burke

Citations

• 93 Kan. 236
• 144 P. 193
• 1914 Kan. LEXIS 416

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Highway — Obstruction — Injunction Proper Remedy. Injunction is an appropriate remedy to prevent the closing or obstructing of a public highway.</p> <p>2. Highway — Title Only Incidentally Involved — Not Entitled to Jury Trial. Usually in actions to enjoin the closing or obstructing of a public road, title is only incidentally involved, and the mere filing of an answer setting up title in the defendant and denying the existence of a highway will not give him the right to a jury trial.</p> <p>3. Highway — Dedication by the Owner — Acceptance and User by the Public. In an action by the public authorities to enjoin the obstruction of a public highway the judgment recited a finding that the road was laid out and established as a county road by viewers appointed for the relocation and resurvey of a certain road in 1886, upon actual view and in the presence of the then owner of the land, and since that time has been a traveled public highway. Held, that the facts recited are sufficient to support a claim of dedication by the owner and acceptance and user by the public, and to sustain a general judgment in favor of plaintiff.</p> <p>4. Highway — ■Dedication, a Conclusion of Law from Facts. Whether a road has been established by dedication is a conclusion of law from facts stated or found. Where the petition alleges facts sufficient to show a dedication by conduct of the owner of the land and acceptance and user by the public, dedication may be relied upon without the use of that word in the petition.</p>