State ex rel. Dawson v. Parsons Street Railway & Electrical Co.

Citations

• 81 Kan. 430
• 105 P. 704
• 1909 Kan. LEXIS 383

Syllabus

<p>.SYLLABUS BY THE COURT.</p> <p>1. Remedy — Owner of Property Injured by Authorized Subway for a Car Line in Public Street. If the public officers who are charged with the control of such matters authorize a subway for a car line in a public street, an owner of abutting property, the value of which is thereby diminished, can not interfere to prevent its construction, however seriously he may be inconvenienced by it. In such case his only remedy, if any, is by an action for the consequential damages.</p> <p>2. Public Streets — Legislative Power Delegated to Railroad Commissioners — Street Railway — Subway Beneath Tracks of a Railroad. 'The legislature, having paramount authority over public streets, may authorize a street-car company which has by ordinance been granted a right to operate only a surface road to construct a subway beneath the tracks of a railroad. And it may devolve the power to permit and to require this upon the board of railroad commissioners.</p> <p>3. Board of Railroad Commissioners — Crossing of Railroad Track by Street-car Line. Under the statute (Laws 1907, ch. 267, §1; Gen. Stat. 1901, § 5974) „ giving the board of railroad commissioners power to determine whether there is a necessity for the crossing of a railroad track by a street-ear line, “and, if so, the place thereof, whether it shall be over or under the existing railroad, or at grade, and in other respects the manner of such crossing” (Gen. Stat. 1901, § 5974), the board can authorize the street-railway company to construct a subway in the street of a city beneath the tracks of a railroad company, in accordance with whatever regulations it may see fit to impose, so that they have relation to the safe operation of both roads and are not unreasonable.</p> <p>4. - Discretion — Conelusiveness of Board’s Determination. Unless the board acts arbitrarily or capriciously in such matters its determinations are conclusive.</p> <p>5. Parties — Mandamus. In a mandamus brought by the state to req