Tandy v. City of Wichita , 126 Kan. 103 ( 1928 )

The opinion of the court was delivered by

Marshall, J.:

The action is one by the plaintiffs, house movers, to enjoin the defendants, the city of Wichita and officers thereof, from enforcing an ordinance requiring each house mover to deposit with the city clerk of Wichita a bond in the sum of $500 conditioned that he will pay to any person, firm or corporation all expense incurred in the removal, cutting or raising of wires, pipes or other equipment, made necessary by reason of moving any building along the streets. Judgment was rendered in favor of the defendants, and the plaintiffs appeal.

Several propositions are argued by the plaintiffs, but they are all embraced within one contention — that is, that the ordinance requiring a house mover to give a $500 bond is invalid. That ordinance is No. 9303. An old ordinance, No. 4588, contained the following provisions:

“If [in] the removal of any building along any of the streets or alleys of the city, such building cannot be made to pass under any telegraph wire, or other wire or wires, by raising the same for such purpose, the person moving such building shall give four hours’ notice to the person owning or controlling said wire or wires, and such person so owning or controlling said wire or wires shall then cut or remove same, provided that the street railway company shall, after receiving the four hours’ notice aforesaid, cut or remove its wires promptly at 1 o’clock a.m. Said wires may be cut and remain separated a reasonable length of time for said building to pass, and shall then be repaired and put in as good condition as before the cutting or removal of same at the expense of the person moving said' building, said expense to be only the actual cost of such cutting or removal; providing further, that all wires lower than specified by ordinance must be raised free by the person, firm, company or corporation owning the same.”

Those provisions of ordinance No. 4588 have not been repealed, and are still in effect. The pertinent parts of ordinance No. 9303 are as follows:

“Section One. That on and after the passage and publication of the ordinance, every person, firm or corporation engaged in the business of moving houses, bams or other buildings, and any other person, firm or corporation not so engaged in the business of house moving, who shall occupy streets, alleys, boulevards and highways of the city of Wichita, for the purpose of moving houses, barns or other buildings over, along or upon streets, highways or public grounds of the city, shall file a bond with the city clerk of the city of Wichita with good and sufficient sureties thereon, approved as to form by the city attorney, and as to sufficiency by the board of commissioners in the sum of five hundred dollars ($500), which bond shall be conditioned that the person, firm or corporation who shall be engaged in such business, or engaged in the moving of a building over, along or upon the streets, alleys and public grounds will pay to any person, firm or corporation all bills owing to such firms or corporations incurred in the removal, cutting or raising of wires, conduits, pipes or other equipment of such person, firm or corporation, by reason of the moving of said buildings along the streets, alleys or public grounds of the city, together with all other expenses or bills which may be incurred by reason of the changes, removing or relocating such equipment to allow the passage of such building.

“Sec. Two. That it shall be unlawful for any person, firm or corporation to occupy the streets, highways or public grounds of the city of Wichita for any of the purposes provided for in section one hereof, without' having first complied with the provisions of section one hereof, and any person who shall be convicted of a violation of the terms hereof shall be deemed guilty of a misdemeanor and upon conviction thereof be fined in any sum not exceeding five hundred dollars ($500), and the costs of the action, and be imprisoned in the city jail and workhouse until such fine and costs are paid.”

Cities of the first class have control over the streets therein. They are not used primarily for the purpose of moving houses over them. That is an extraordinary use of the streets.

In Railway Co. v. Sproul, 99 Kan. 608, 610, 162 Pac. 293, the following is found:

“The moving of buildings, derricks, and such structures on the streets and other highways is not an infrequent or uncommon use. While the use may not be regarded as ordinary, at least not so common as travel over the streets by wagons, carriages, automobiles and like vehicles, it is a frequent and a proper use.” (See, also, 3 McQuillin Municipal Corporations, § 1360.)

Moving houses over streets obstructs ordinary traffic thereon and endangers property that in any way interferes with house moving. In cities of the first class there are numerous telephone, telegraph and electric wires strung over, across and along the streets. They are not placed at such a distance above the surface of the ground as will permit an ordinary two-story house to pass under them without interfering with them. To permit such houses to be moved over streets it is necessary to raise or cut those wires. That interferes with telephone, telegraph and electric business during the time that the houses are being moved past them. This entails expense on the part of the person whose duty it is to put the wires in such condition that a house can be moved. That expense should-be paid by the person who desires to move the house. A city has power to make such regulations as may be necessary to protect the streets and all property thereon against injury or damage by any person who desires to move a house. It is for the city to say what regulations are necessary to secure that result. The city could require that a person desiring to move a house deposit with the owner of wires a sum of money sufficient to cover all expense incident to the removal of them before the owner could be required to do anything to permit the house to be moved through them. The city can also require that a bond be given providing for the payment of that expense. This case comes within the principle declared in Desser v. City of Wichita, 96 Kan. 820, 153 Pac. 1194; Decker v. City of Wichita, 109 Kan. 796, 202 Pac. 89; and Slocum v. City of Wichita, 114 Kan. 260, 217 Pac. 297. The city had authority to pass the ordinance that is in question, and for that reason it is not invalid.

The judgment is affirmed.