Hammerslough v. City of Kansas

1. Streets — Opening of — Non-payment for land talcen for, what remedy proper.— Where city authorities condemn a lot and are preparing the same for a public street, but fail to make payment for the land, injunction restraining the city from using it, until paid for, is improper. The remedy, if the owner claims the sale to be void, is ejectment; if valid, suit for the purchase money.

Appeal from Jackson Circuit Court. I. Respondents had an adequate remedy at law and therefore were not entitled to relief in equity. The city was bound to pay for the lot under the agreement. Is not an action to recover the price with interest, an adequate remedy; or, if the agreement be void, as there was no written contract of sale, is not an action to recover for damages the entire yalue of the property, an adequate remedy ? (Mueller vs. St. L. & I. M. E. E. Co., 3i Mo., 262; Soulard vs. St. Louis, 36 Mo., 546.) Is not an action of ejectment to recover possession of the land with damages, an adequate remedy? (Burnett vs. Caldwell, 9 ‘Wall., 591.) The petition does not state that the city was injuring the land, nor that preparing the lot for use as a street, was such an injury as raised an equity for an injunction. The circumstances of there having been an ordinance condemning the property cuts no figure, neither party relying on it. Again, the city disclosed facts which raised a counter equity in its favor, to prevent the granting of an injunction. The ground was part of an important street, built .up and improved by citizens, graded and fitted for public use by the city, at a considerable expense. In such case specially should respondents be left to their remedy at law. An injunction operates harshly. (Pratt vs. Bates, 40 N. Y., 166 ; Ewing vs. St. Louis, 5 Wall., 418 ; Eedf. Eailw., [2 Ed.] Ch. 27, § 2, pp. 418-81, and cases cited.) As a matter of law appellant is not entitled to specific execution unless it performs its part of the contract. If it asks equity, it must do equity. It is not entitled to the decree asked in its answer until it makes payment or offers to do so. Ejectment will not lie. (Child vs. Chappell, 5 Seld., 246 ; Jackson vs. May, 16 Johns., 184.) Eespondents are not bound to proceed in trespass. An injunction will lie in just such cases as this. (Lumsden vs. City of Milwaukie, 8 Wis., 4So, and authorities cited by the court: Mohawk & Hudson E. E. Go vs. Archer 6 Paige Ch., 83, et seq.; and cases cited in opinion of court; 2nd Sto., Eq., §§ 927, 928, and note ; New York Print. & Dy. Est., vs. Fitch, 1 Paige, Ch., 97 ; Lewis vs. Eough, 26 Ind., 898; Sidener vs. Norristown E. E. Co., 23 Ind., 623 ; Smith vs. Bangs, 15 Ill., 400; Yarrick vs. New York, 4 Johns. Ch., p.55.)