The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1904-06-28
CAN NOT APPEAL.
Action of Judge Hazen on Fourth
Street Paving VIII Be Final

L z. Myers. vice president of the
Topeka City railway, has placed his 0.
X on the plans for the injunction of
the West Fourth street paving dispute,
and has approved the agreed statement
Of facts drawn up by the attorneys. Ar
engagements have been made by which
the mandamuS suit against the railway
company shall be brought in the dis
trict court today, and argued Wednes-
day morning. Judge Hazen viii render
his decision on Thursday or Friday be-
fore the adjournment of court for the
summer.
The following is one of the important
sttpulations Of the agreement entered
into between the city and the railway
company:
1T is hereby stipulated and agreed
by the parties hereto that said case
shall be submitted and decided by the
court upon said facts and that no APP
peal shall be taken from his decision
by either party but that it shall be fin
al and binding"
This makes it impossible for either
side to appeal the case to the supreme
court.
The question at issue is whether or
not the city railway shall pay for the
paving of an S-foot right of way be-
tween Polk and Western avenue on
West Fourth. When the pavement on
these blocks was petitioned for and al
lowed, the railway had it's track there.
But before it was laid, the track was
doned.
The agreed statement of facts says
When the petition for pavement was
signed by the resident property owners
they signed the same with the thought
and expectation that the railway COM
pany would pay for the S-foot strip be-
tween Polk and Western avenue; the
defendant, however, reserves the right
to question and object to the competen-
ey of what the petitioners thought or
expected"
6 The contract for paving West Fourth
was let on April 80 1903 and provided
ted December Is, 1903 Owing to the
Hood no work was done on the contract
that summer. In November, 1903, the
city railway moved it's tracks off from
West Fourth On December 18, three
days after the expiration of the con
tract time, the contractors applied to
the council for an extension of time,
which was granted The city railway
attorneys lay much stress on the fact
that the extension of time was not
granted until three days after the ex-
piration of the time limit.
In giving its reasons for abandoning
the West Fourth street right of way
between Polk and Western avenue, the
city railway says:
on the 2Sth of November, 1903, the
city railway took up Its tracks on said
Fourth street from Polk street to Clay
street, and abandoned said Fourth
street between said Polk and Clay
poles, wires and material therefrom,
and instead of operating it's cars be
tween Polk and Clay streets changed
its route and continued its track from
Fourth street north on Polk street to
Third street, and thence west on Third
street to Taylor street with the inten-
ton and purpose of constructing and
operating its line of railway further
west on Third street to the city limits
as soon as Third street shall be opened
by the city of Topeka. Said change was
made by the defendant in good faith
and not for the purpose of avoiding
payment for the pavement of it's old
right of way between Polk and West
ern avenue, but with the honest belief
on its Part that it could better serve
the people living in that section of the
city by running its track west on
Third street than it could by maintain
ing track on Fourth street and that
said change would be mutually bene-
fetal to the public and to the railway
company
The amount involved in the contro-
Fersy between the city and the railway
company is the cost of paving d strip
eight feet wide and two blocks long.
This is probably a little over $1,000 If
the city loses its fight to compel the
city railway to do the work. the only
way left for the city to do is to levy
another assessment against the proper
fy owners on these two blocks to fin
ish paving the street.