The Mullinville city council and Mayor Andy Kimble asked adjacent landowners of sections of Elm Street and Pine Street to quitclaim the street property that was once vacated, back to the city.
Flanked by City Attorney Janice Jorns, Kimble and a three-person city council including Jary Boehme, Dee McDonald and Tom Daniels asked the landowners to terminate their rights to the property that included the 30 feet of vacated city roads running adjacent of their properties on Elm Street and Pine Street. City council members Kristie Odle and Rocky Watson were not present.
Jorns explained the city’s position. It feels the city was the rightful owner of the land because the city had reopened the streets via Ordinance No. 119, that the streets had been classified as “official trafficways” by Ordinance No. 190 and that the city maintenance of the roads was proof of possession.
“It is my opinion that what the city has in both cases is a ‘street by prescription,’” said Jorns. “It’s akin to obtaining a piece of property to adverse possession. If there is a open or notorious use of a street by the city, i.e. they use it as a street, then the city has a street by prescription.”
Kansas Statute Annotated (K.S.A.) 60-503 requires adverse possession of property for 15 years, and that it must be in “open, exclusive and continuous possession.”
Jorns added that the city had two options, either the landowners could quitclaim the property back to the city, or “the city could ask the court system to clear up the street.”
“Either way, that would clear up the issue,” she added.
Jorns’ speech reinforced Mayor Kimble’s comments last week that Mullinville would initiate court action against landowners who did not gift the land back to the city.
Landowners were allowed the opportunity to comment or ask questions about the request
Don Liggett, who owns property along the disputed section of Elm Street complained that city workers regularly filled his gutters with sand and said he had considered sending the city a bill for it several times.
M.T. Liggett was allowed an opportunity to comment but declined. Darlene Miller also did not comment. Both Liggett and Miller own property on Elm Street.
“Are any of the property owners willing to do a quitclaim deed this evening to remedy this situation?” asked Kimble.
“I’ll think about it,” said Don Liggett, the only Elm Street landowner to respond.
The Pine Street landowners, of which there are only two, Charlie Ralstin and Todd Alexander were both in attendance.
“I don’t have a problem with the quitclaim, but until I know where the line is drawn and until it’s surveyed, I want to know where the line is at before I sign it over,” commented Ralstin. “That’s all I’m asking, I want to know where the property line will be.”
Jorns said that she was not sure where the line was drawn, but that the city would have to look back at the original vacation of the street to determine boundary lines.
“Maybe I’m late to the game, but what’s the problem with the way it is now?” asked Alexander.
Jorns reiterated that if the property changed hands, there might be complications between the city and the new owner as to whether it was a city street or not.
“But it’s already a street,” quipped Alexander.” It’s called Pine Street. Again, what is the purpose of this?”
Jorns repeated it was the city’s desire to clarify it was a city street, and not a portion of his private property. “In legal terms that puts a cloud on the property and the street as well.” Jorns and Kimble mentioned a “cloud” over the properties and title a number of times during the meeting.
“So how does this help the city?” asked Alexander.
“The option for the city is to file a lawsuit and have it declared a street,” answered Jorns. “[The quitclaim deed] makes it easier. But please know that we’re not aimed to change the practical use of it in any way.”
M.T. Liggett, who had protested the city’s advances with a parade of trailers along the west side of Elm Street, loudly expressed his disapproval of the city’s plan.
“I’ve known about this thing since 1938,” said Liggett. “Why did you kick the sleeping dog? Nobody said a thing for all of these years, then you said ‘oh MT pulled the trigger’ and that’s not true. If you’re saying that Pine Street and Elm Street are the only ones involved, well you are smoking something you shouldn’t. I don’t even know why you guys brought this up, it’s been that way for a hundred some years and nobody’s said anything. And are you saying that there is no revenge in this sir?”
Councilman Daniels responded to Liggett “No there is not.”
Todd Alexander again chimed in asking, “What does it matter?”
Responding, Jorns reminded the attending landowners that the city could and would pursue legal action to take the land, and mentioned eminent domain as a possible avenue.
“That is a second option, but eminent domain is definitely an option,” said Jorns.
Kansas’s eminent domain laws allow cities to take property without the consent of the landowner. Landowners must be compensated for the property, but its value would be determined by a court-appointed appraiser.
K.S.A. 26-501b, which regulates municipalities taking of private property by eminent domain, states that cities may take property if it has a “clouded or defective title or unknown ownership interests in the property.” It also allows cities to sell, lease or transfer land to private entities.
Liggett and Kimble continued to exchange words, with Kimble saying that Elm Street and Pine Street were reopened by ordinance and Liggett responding “Sir, you know just as well as I do that the ordinance isn’t worth the paper it’s printed on.”
Liggett was referring to state statute, which requires street ordinances to be submitted to the county register of deeds office. Ordinance No. 119, which addresses the re-opening of streets in Mullinville, including Liggett’s stretch of Elm Street was never filed with the county.
“Well that may be something the court will have to decide,” responded Kimble.
Liggett accused the city of holding a “kangaroo court” and left.
Kimble ended the discussion by thanking the landowners for attending the meeting.
“Give it some thought,” said Kimble. “We’ll contact you in the future to ask you about your decision.”
City officials gave no time frame or deadline for landowners to sign over the property.