Franks v. State Highway Commission, 40688
| Citation | 182 Kan. 131,319 P.2d 535 |
| Decision Date | 07 December 1957 |
| Docket Number | No. 40688,40688 |
| Parties | Karl W. FRANKS and Esther Faye Franks, his wife, Appellees, v. STATE HIGHWAY COMMISSION of the State of Kansas, Appellant. |
| Court | United States State Supreme Court of Kansas |
Syllabus by the Court
The state highway commission by an action in eminent domain condemned a right of way for the relocation of U. S. highway 24 and later, after the legislature passed the controlled access facilities statutes (G.S.1955 Supp. 68-1901 to 68-1906, incl.), the commission commenced another eminent domain proceeding to condemn plaintiffs' right of access to and from their abutting land by establishing U. S. highway 24 and a frontage road as controlled access facilities. The latter action was then abandoned by the commission and this led to plaintiff's filing a suit in equity to enjoin the commission from proceeding to limit, control, and take plaintiffs' right of access. The record is examined, and it is held, the trial court properly overruled the demurrer.
William B. Kirkpatrick, Topeka, and Stanley Taylor, El Dorado, argued the cause, and Henry L. Daniels, Topeka, was with them on the briefs, for appellant.
A. Harry Crane, Topeka, argued the cause, and Ralph F. Glenn, L. M. Cornish, Jr., Ward D. Martin, Arthur L. Claussen, and Harvey D. Ashworth, Topeka, were with him on the briefs, for appellees.
This is an appeal by the state highway commission in a suit in equity by landowners to enjoin the commission from limiting and controlling plaintiffs' right of access from their land to a relocated highway. The trial court overruled the commission's demurrer to plaintiffs' amended petition and this appeal by the commission from that order followed.
We shall refer to the plaintiff's as they were in the lower court, to the state highway commission as the commission, and to the amended petition as the petition. Attention is called to the map included herein. The land involved is that shown as tract No. 33 south of former U. S. highway 24 as well as that part of tract No. 33 which is north of former U. S. highway 24 and west of tract No. 34.
The salient facts alleged in the petition are:
In September, 1951, the commission condemned and took by a proceeding in eminent domain a portion of plaintiffs' land immediately south of tract No. 33. However, under then existing laws, no rights of access could be or were taken. At the time of the taking the plaintiffs understood and believed they would be on and have access to both the new and old U. S. highway No. 24. On August 29, 1952, the commission designated the road and right of way taken in 1951 as U. S. highway 24. In 1953 legislation was enacted which provided for designated controlled access facilities and for acquisition of rights of access, light, air or view for such facilities. G.S.1955, 68-1901 to 68-1906, incl. On April 3, 1956, the commission instituted an action to acquire property for right of way from plaintiffs and including rights of access for a designated controlled access facility and frontage road. It sought to acquire about .078 of an acre of plaintiffs' land 'together with the abutter's rights of access appurtenant to the remaining property in and to said highway, provided, however, that such remaining portion of said property shall abut upon and have access to a frontage road which will be connected to the highway only at such points as may be established by the public authority.'
It was further alleged that on April 26, 1956, the court-appointed appraisers allowed damages to plaintiffs' tract No. 33 as follows:
Owner's crop loss $100.00
.078 acre land taken 385.00
Abutter's rights of access 6,690.00
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$ 7,175.00
The petition also alleged that on May 3, 1956, within the thirty-day period in which plaintiffs were entitled to appeal, the commission by an ex parte order of the court abandoned that part of the project relating to the award for plaintiffs' land and the award for their abutter's rights of access. By resolution of November 9, 1955, the new highway was designated a controlled access facility with a frontage road on the south side of plaintiffs' land between plaintiffs' land and the new highway but wholly within the right of way acquired in 1951. (The map included herein shows how plaintiffs can get onto the frontage road and the new highway only from whatever point or points the commission may designate, as provided in G.S.1955 Supp. 68-1902 and 68 1905.) Under G.S.1955 [182 Kan. 134] Supp. 68-1906 plaintiffs can lawfully enter highway 24 only at such points between the frontage road and the controlled access facility as are designated by the commission. Then followed allegations that plaintiffs' only remedy lies in equity.
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
The commission demurred to this petition on the ground it failed to state facts sufficient to constitute a cause of action in favor of plaintiffs and against the commission. The trial court overruled the demurrer generally and this appeal was taken by the commission.
We shall refer to a part of the original petition of the commission in the eminent domain proceeding instituted on April 3, 1956, since it is referred to and made a part of the petition here. It states that under G.S.1955 Supp. 68-1901 through 68-1906, the commission by condemnation had authority to establish controlled access facilities; to construct and maintain frontage roads; and to acquire private and public property, including rights to access for such controlled access facilities and frontage roads. On November 9, 1955, the commission determined it was necessary to and it desired to acquire by condemnation certain lands (in addition to those taken in 1951) and all rights therein to control ingress and egress, as controlled access facilities and for right of way.
The only question before this court involves the petition and although other matters not actually appearing on the face thereof were stipulated below to make it simpler for the trial court to consider the demurrer, they cannot and will not be considered on appeal. Whitaker v. Douglas, 177 Kan. 154, 277 P.2d 641; Robinson v. Muller, 181 Kan. 150, 309 P.2d 651; Kleppe v. Prawl, 181 Kan. 590, 592, 313 P.2d 227; Wendler v. City of Great Bend, 181 Kan. ----, 316 P.2d 265.
This appeal is from an original suit in equity. It is not an appeal from an award of appraisers in an eminent domain proceeding for the condemnation of land. While it is true the commission maintained to a conclusion the eminent domain proceeding commenced in 1951 whereby the right of way was obtained for the proposed new or relocated U. S. highway 24 and on April 3, 1956, it instituted a proceeding in eminent domain to condemn and to acquire right to privately-owned property and involving access to and from such property, the action of April 3, 1956, was dismissed and abandoned so far as it concerned these plaintiffs. Plaintiffs' complaint is not that the commission did not, and does not, have power through eminent domain to condemn and to acquire rights of access. They complain their right of access was limited and controlled by the commission without proper exercise of the power granted to it under G.S.1955 Supp. 68-1903, which provides:
'The highway authorities, jointly or severally, may acquire the desired private or public property, including rights of access, light, air or view for controlled access facilities, by gift, devise, purchase or condemnation, in the same manner as now or hereafter authorized by law for acquiring property or property rights in connection with highways, roads and streets within their respective jurisdictions.' (Our emphasis.)
This is not the first test of such power of the commission to limit or control access granted under the new law because it was considered in Simmons v. State Highway Commission, 178 Kan. 26, 283 P.2d 392. The Simmons case, however, had proceeded to final judgment, which is not the situation in our present case. The right of access of a landowner to and from his land and how that right can be limited or controlled was stated in the Simmons case in the following language:
'However, it is conceded that at that time she [the landowner] had a...
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