Luttgen v. Ergenbright

¶1(dissenting): After a prolonged effort to comprehend the logic in the court’s opinion, I am not convinced that the ruling of the district court was correct. This is not a case in which some governmental entity owned a street which was never a part of any addition but was designated as a street in the original plat of a township site as was true in the case of Railway Co. v. Showalter, 57 Kan. 681, 47 Pac. 831, relied upon in the opinion. In the present case the alley was created by, in connection with, and as a part of Schweiter’s Fourth Addition. The plat thereof so shows. It was never a part of the land platted in Schweiter’s Sixth Addition and was not a part of an unplatted tract. Therefore, the case of Schoen v. Baker, 130 Kan. 630, 287 Pac. 233, cited in the court’s opinion, is in point and should be followed. I do not agree, that the result should be different in this case merely because at one time the same company owned all of both additions. The two cases above referred to do not turn on such a factual difference and I see no logical reason for the creation of such a distinction. If such be a sound basis for discrimination, then it must follow that the result would be directly opposite as to any part or the whole of the Fourth Addition if Schweiter had sold to a third party rather than to the same company. If the legislature intends that such should be the case,, it should be permitted to say so. I see no reason for giving the-statute a strained construction. The wording of the exception therein is simple and contains nothing in the nature of an exception to the-exception. The hill of legislative history construed in the court’s opinion is not helpful to me. Instead of creating a high point from which one can see clearly the question in this case it only serves to cast a shadow of confusion over the plain provision of the statute.