The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1901-10-01
IN COURT AT LAST
Waterworks Suit Filed Today
Before Judge Hazen.
Attorney Smith For the Com
pany Is Undecided.
CASE MAY BE REMOVED
Would Then Go to the Federal
Court.
Assertion Made That Plant Is
Worth 100000.
Court Asked to Force Water
Company to Sell.

After years of Investigations, pro-
crastinations and uncertainty, the suit
of the city of Topeka to acquire pos
session of the plant of the Topeka Wa
ter company was filed this morning
with Judge z. T. Hazen of the district
court by City Attorney Charles F.
Spencer and Judge J. D. Mcfarland,
who represent the city in the litigation
which is intended to result in city
ownership of the waterworks plant.
Charles Blood Smith, of the firm of
Rossington, Smith & Histed, the coun-
sci for the Water company, was asked
today in regard to the probable course
of the Water company.
Il can't say what we will do,'' replied
Mr.. Smith. "I suppose that the petition
filed by the city is the same the one
which was served on US a short time
ago. I have not read it over carefully.
1t is the city's fight far. We have
done nothing. We have not even been
notified yet that we have been sued.
suppose that this case will take the
usual course, and that we will be served
with a summons and given twenty days
to answer"
'WilI the case be removed by the Wa
ter company to the federal courts 2"
was asked.
II do not know yet" said Mr.. Smith.
Judge Hazen had nothing to say
about the case, and the indications are
that the petition, which is not in the
form of an ordinary law suit, will be
compelled to take the ordinary course.
If that is the case, it will come up for
hearing in it's turn at the next term of
court
The petition is a document of 80
pages comprised in the petition
proper. The rest consists of copies of
notices filed on the Water company,
copies of ordinances passed by the city
giving the waterworks franchise, copies
of the sworn acceptanceS filed by the
company and copies of other formal
The petition proper reviews the
method in which a franchise for the
erection of a waterworks plant was
granted to the company by the city
council, and the various changes in
ownership in the plant from the time
of its establishment. The petition goes
on to state:
In the month of October, 1896, said
Topeka Water company, a New Jersey
corporation. executed and delivered to
the said Atlantic Trust company, as
trustees, its three several mortgages, or
deeds of trust, upon all property and
said franchise purporting to secure its
bonds, aggregating about $1900,O00,
which said mortgages are of record in
the office of the register of deeds in
Shawnee county, Kansas, the county in
main of record undischargeG whereas
said property is not worth to exceed
S40O, 900; so that it would be impossible
for said plaintiff in purchasing said pro-
perty under said ordinance No. 400. to
exercise its right of deducting the full
amount of the membranes on said
property from the amount of the price
to be paid for said property; and said
mortgages SO cloud the title to said
property that said plaintiff can not
safely proceed to buy said property of
the said water company acting alone,
and said receiverShip still further
clouds said title, and embarrasses said
plaintiff in the exercise of the right of
purchase given it by said ordinance No.
4OO.
The petition then describes in detail
the property of the Topeka Water COM
pany in the city of Topeka, including
the right of way to lay water mains
and other property rights of the fran
chise. 1t then states:
1.-The fair, full and equitable Val1e of
all said property is the sum of 100000
and no more, and said plaintiff is and
has been able, ready and willing to pay,
and offers to pay, such value this
court may determine to be fair and
equitable but said defendant, the To-
peka Water company, claims that the
value of the plant is a sum very great
ly in excess of the actual. fair and
equitable value thereof tOwit: the sum
of 100000, and said plaintiff can not
come to an agreement with said COM
pany as to the fair and equitable value
of said property, and the plaintiff de-
sires to become the sole owner of all
said property"
The prayer of the petition is as fol-
lows:
''Wherefore, said plaintiff prays that
the said contract between it and the
said Topeka Water company may be
enforced according to and the true
intent and meaning thereof; that the
fair and equitable value of said prop
erty may be ascertained and fixed by
thereof by said plaintiff, within such
reasonable time the court may fix,
said Topeka Water company, defend
ant, shall be decreed to make, execute
and deliver to said plaintiff a good and
sufficient deed, conveying all of said
property to said plaintiff in fee, clear
of all membranes and liens; that
such purchase price be ordered paid
into court, to abide the determination
of the court, or the agreement of said
Topeka Water company, and said At
lantic Trust company, as to the dis
position of said fund as between them
and that said price, being paid into
court, the said Atlantic Trust company
shall stand foreclosed and barred for
ever of any and all claim pretense
of any claim to said property, or inter
est therein lien thereon, because of
its said mortgages, or either of them;
and that said Topeka Water company,
and said J. w. O'Nei1, as receiver. or
his successors in office, de decreed to
Immediately surrender to said plaintiff
all the said property, upon the payment
of said price into court. and said