Union Quarries, Inc. v. Board of County Commissioners

The opinion of the court was delivered by This is an action seeking declaratory judgment of property rights under zoning regulations sought to be applied to plaintiffs' property and for injunctive relief against interference with the property. Plaintiffs prevailed and defendants have appealed. The record reveals the following: In 1949 plaintiff Magdalen E. Tobin and her husband, Patrick Tobin, acquired property near Stanley in Aubry township, Johnson county, Kansas, for use as a rock quarry. Thereafter, and until May, 1961, Mr. Tobin conducted a small rock quarrying operation on the premises, selling rock to neighboring farmers and others and to the city of Olathe. During this period Mr. Tobin would employ from one to five persons to assist him in the operation. On May 31, 1961, the Tobins leased the property for quarrying purposes to the Union Construction Company for a period of five years with option to renew for two like periods. Union carried on substantial quarrying, selling a large volume of rock, until October, 1963, at which time it removed its quarrying and crushing equipment from the premises. It left thereon a highloader and about 20,000 tons of crushed rock. It had other quarrying locations where it used its portable quarrying and crushing equipment as the demand for rock required. Mr. Tobin died January 5, 1965. On May 18, 1965, Mrs. Tobin commenced an action against Union in the Johnson county district court for cancellation of the lease on the ground of abandonment. This suit was dismissed with prejudice on August 15, 1965. On January 1, 1966, Union Construction assigned its interest in the lease to plaintiff Union Quarries, Inc., who in turn subleased to J.A. Tobin Construction Company, which immediately commenced to quarry rock in larger volume and intensity than had been initially conducted on the premises.