Stebbins v. Challiss , 15 Kan. 55 ( 1875 )

The opinion of the court was delivered by

Brewer, J.:

Many of the questions in this case are similar to those in the case of Challiss v. Commissioners of Atchison County, just decided. They need not therefore be considered here. One principal difference is, that here the sale certificates were held by the plaintiff in error, Stebbins, and it may with more propriety be said that an injunction will not “embarrass the collection of the public revenues.” The county has received the money, and the controversy is one simply between two individuals, one seeking to free his property from an apparent incumbrance, and the other seeking to perfect a title to that property — a title which he has acquired for but a small fraction of the value of the property. Yet, notwithstanding the difference in the positions which the defendants in the two cases occupy, the same decision must be made in each, for the claim of the plaintiff in each rests upon the same foundation. It matters little what wrong a defendant may be doing, unless the plaintiff’s claim is equitable; and in each of these cases the plaintiff, without paying a cent toward the public revenues, is asking a court of equity to release him from all obligations to pay. And though the county is no longer the holder of these certificates, yet, if this action be sustained, it will be compelled to refund to the defendant the money he has paid for them. So that the ultimate result would be to release the plaintiff from his share of the public burdens, to deprive the county of this portion of the public revenues, and to cast a so-much-heavier burden on the other citizens and property-holders,. True, something might be done towards avoiding this result by a reassessment, levy, and sale, if authorized by the legislature. But owing to the delay and expense, this would only be a partial avoidance.

One other question is presented, which affects a part of the property only. At one time there had been what was known as the Spring Garden-Addition of the city of Atchison. This was duly laid off into lots and blocks, and some of the tax certificates held by the defendant were upon lots in this addition. But before any of these tax proceedings were had this addition had been duly vacated, so that the lots and blocks had ceased to exist. It is insisted that by the vacation this addition ceased to be a part of the city, or subject to city taxation. On the 12th of February 1858 an act was passed by the territorial legislature concerning the city of Atchison, by the first section of which the boundaries of the city were defined. The property in controversy was outside of those boundaries. On the 11th of February 1859 another act was passed, in the first section of which it was provided among other things, that “all additions which have been or-may hereafter be made shall become and be a part of said city, after the plat thereof shall have been filed as required by law twelve months, and shall be liable for taxes as other city property after the commencement of the first fiscal year of said city thereafter.” By this act this addition became a part of the city. And the act provides for no temporary or conditional annexation. The ground platted is not to be a part of the city so long only as it remains platted, but it is to become and be a part of the city permanently. The act provides a way in, none out of the city. But in 1864 an act was passed providing for the vacation of town sites and additions, (Laws of 1864, p. 241,) and in that it is declared that, in case of a vacation, “all surveys for the subdivision of such lands are expunged from record, and declared null and of no avail in any court of this state, and the lands hereby restored to their original condition under the surveys of the United States government, as if no platting for a town had taken place.” This language is very broad, and it may possibly sustain the claim of counsel; but we do not care to decide the question, as we deem it unnecessary for the disposition of this case. For though this still be a part of the city of Atchison, and subject.to its taxation, we think the injunction must as to it be sustained. In the second section of the act last'cited it is provided that after the vacation the “land shall be as if never a town site, and shall be taxed as parcels of land by appropriate descriptions in acres.” These lots were assessed in disregard of this plain and positive requirement, and it is an error which involves something more than a mere irregularity.of description. It must be presumed that the assessment was fairly made as an assessment of lots with streets and alleys surrounding them, and the fact that these streets and alleys exist, or are supposed to exist, is an element which enters into and forms a part of and to that extent increases the valuation. How materially they did affect the valuation in this particular instance, we cannot say. Perhaps it cannot in the very nature of things be shown. The elements which enter into and determine the value are so essentially different in the case of town lots, and open fields, that it seems as though they were almost incapable of exact pecuniary measurement. As the case at present stands there is no attempt at it. More than that, the ground covered by the streets and alleys, being then private property, and subject to taxation, may yet be reached and compelled to bear its proportion of the public : burdens, for though the supposed streets and alleys may have increased the value of the supposed lots, yet they do not thereby become themselves exempt from taxation. We think therefore the district judge did not err in overruling the motion to vacate the temporary injunction as to these lots. The case may be thus summed up: The plaintiff is the owner of a certain tract in the city of Atchison which is liable to assessment and taxation as a single tract of so many acres. Portions of it, by descriptions through which they can be identified, are assessed and taxed as lots surrounded by streets and alleys. Such assessment includes and is based upon elements of value which do not exist in the case of unplatted ground, and which so far as now appears have no exact pecuniary measurement. The supposed existence of streets and alleys, while it increases the valuation of the ground assessed as lots, does not exempt from taxation the ground covered by the streets and alleys, which may hereafter be assessed and taxed. The assessment therefore is both irregular and unjust. It presents a case for equitable interference.

The order of the district judge refusing to dissolve the injunction will therefore be reversed, except as to the lots in the so-called Spring Garden Addition, and as to them it will be affirmed. The costs will be divided!

All the Justices concurring.