The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1902-11-20
City Attorney Spencer Says City
Owns PaVements.
Brick in Right of Way Must Be
Left Alone.
CLAIM OF TAX PAYERS.
Mr.. Spencer Says 1t Would
Cause Endless Complication.
Engineer Once Said Pavement
Belonged to Property Owners.

Acting under the advice of City At
tOrney Spencer, Mayor Parker today in
iatructed Street Commissioner Griggs to
take possession of all of the brick from
abe pavement which the VinewoOd rail-
ssway company has torn up. Mr.. Spencer
sAolds that the brick belongs to the city
at large, not to the Vinewood com pany
nor to the property owners on the street
where the pavement is torn UP.
The city Will also take possess ion of
the 1000 brick which were appropriated
"Wednesday by J. A. Davis, Van Buren,
street man. If Mr.. Davis refuses to
give them uD. the city will l-eplevin
them.
The question of whether the v inewood
company shall be compelled to pay for
the brick which it has already used in
paving its right of way, or whether the
street railway company shall be held
liable for the value of the material it is
alleged to have used in years past is
matter which City Attorney Spencer re-
fuses to discuss. Tat is a. point for
the council to decide Mans ger Patten
of the street railway denies that his
road ever used any paving material of
any consequence.
City Attorney SpencerFs opinion is
'verv positive in regard to the points at
issue. He says that the claim of the
WineWood company to have the right to
use the material is not well founded be-
cause the cOmDany's franchise contem-
ing its own right of way. He disposes
of tie claim of the OWNERS of abutting
property by saying that the city at
large issues the bonds. guarantees their
payment, and provides for maintenance
tof pavement laid and that the city at
large is in fact the owner of the pave
tment. He claims thai if it were neces-
8ary to aDpOrtion the brick among the
dnddvidual property owners, it would re-
Quire the services of a brick commits
sioner, who should either sell the brick
and pro-rate the proceeds according to
the assessed value of the abutting prop
erty. or should divide the brick itself
according to the valuation as shown in
the old paving appraisers reports.
such system Mr.. Spencer says,
would result in endless complications,
and would be aim ost impracticable He
believes that the courts would not re-
gard such a divis ion a feasible meth
Cd OF equitable disposition of the proper
~.
It is likely tlat the vinewood com
pany Will not slttempt to use any more
of the city's HlVing material. At pres
ent, the gang of laborers has been set
TO work grad ng east of town. owing to
the fact that the supply of ties has ran
out.
MANAGER Patterns CLAIM.
Manager 72atten of the city railway,
denies the aitatement of City Engineer
McCabe to the effect that the city rail
way has ufied $4,000 worth OF material
belonging 10 the city. and ought to pay
MI. Mf.Cabe is mistaken about his
assertions regarding the pavement OF
our right of way. East Fourth street
was paved at the expense of the old
Rapid Transit company. which we
bought Gut We simply took their right
OF way Every bit of that street VAS
paved ilt the expense of the railway
company.
The old horse car line had single
track out West Sixth and when the
cedar block pavement was laid, this
right of way was paved by the com.
pany II feet wide. Later the company
want ed to put in a double track. ald
the right of way was increased TO 10
feet. A four foot strip of the cedar
bloc ks were torn up on either side Of
the track. We found that many of the
bio cks were in bad condition. and at
our own expense, replaced about go per
celt of them. The remainder we used
In the pavement. That is all The old
III aterial we have ever used for paving
Our right of way.
City Engineer Kingman once held. in
The case of some asphalt paving which
I've tore up in front of Fensky's place in
North Topeka, that the asphalt belong
ed to Fensky if Fensky wanted it
Fensky was allowed to take il and
build a sidewalk out of it on his prem
dses."
MCABE WILL GAMBLE ON IT.
City Engineer McCabe sa Us he will
stand absolutely pat in re card to his
statement that the city uiilway used
material from the street to pave its
sight of way on West Sixth avenue He
says he is not sure about East Fourth,
but was told what haDoe ned there by
old residents on the street.
I'd just like to bet b undred dollars
with Mr.. Patten that til e city railway
old use old material to pave its West
Sixth track The cedar blocks were
stacked up along by the track, and re-
used ] don't think arly new material
was used. I was on + hat job most all
the time, and saw just how it was
done"
Mr.. McCabe says h e is glad that the
city attorney holds that the brick be-
long to the city. lie thinks the cit.
ought to hurry up and get possession
tons ensue