Atchison v. Kansas State Highway Commission
| Decision Date | 06 July 1946 |
| Docket Number | 36632. |
| Parties | ATCHISON v. KANSAS STATE HIGHWAY COMMISSION. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. A plaintiff may not invoke the ex-traordinary writ of mandamus where he has a plain, speedy and adequate remedy available to him in ordinary course in an action at law.
2. Where the state highway commission, which has the power of eminent domain, appropriates the land of any person for state highway purposes without having first acquired the title thereto by formal condemnation or otherwise, the commission is under an implied contractual obligation to pay to the owner the reasonable value of the land it took without condemnation.
3. The Legislature has given its consent that the state highway commission may be sued on contracts made by the commission in relation to performing its powers, duties and responsibilities under the statutes of this state.
Robert R. Hasty, of Wichita, for plaintiff.
Otho W Lomax, Asst. Atty. Gen., and Edward F. Arn, of Wichita (F Quentin Brown, of Greensburg, and Charles C. Clark, of Topeka, on the brief), for defendant.
This is an original proceeding in mandamus against the state highway commission, hereafter referred to as the commission. At the time the plaintiff filed her motion for the writ, an alternative writ issued, and thereafter the commission filed its motion for an order quashing the alternative writ, and the cause has been argued and submitted on that motion.
The factual situation disclosed by the motion for the writ and by the alternative writ necessary to our decision discloses that plaintiff is the owner of a lot in a particular block in Travel Air City in Sedgwick county, and the action is brought for the benefit of all the owners of lots south of a certain alley in that block; that the commission is organized and exists under G.S.1933, 74-2001, and has power to act for the state of Kansas in all matters for the construction and maintenance of state highways and drainage ditches relating thereto; that by virtue of G.S.Supp.1943, 68-413, the commission has the right of eminent domain and may acquire land for highway purposes only by dedication, purchase or condemnation; that sometime in the spring and summer of 1943 the commission contracted for and completed a drainage ditch including therein all of the alley mentioned, and that plaintiff and all parties for whom the action is filed have been damaged and not compensated by such action of the commission; that the commission excavated for and completed the drainage ditch by taking all of the alley, all of which borders directly on lots owned by the plaintiff and the parties for whom the action was brought, and was so taken without acquiring the land by dedication, purchase or condemnation and without compensation to plaintiff and other lot owners; that all of the parties so damaged have demanded compensation of the commission which has refused to pay, nor has any agreement for payment been made; that this action is brought because plaintiff and other lot owners have no adequate remedy at law; that they have heretofore attempted recovery in a proceeding in this court entitled Tillotson v. Fair, 160 Kan. 81, 159 P.2d 471, 476, wherein it was stated that the rulings on the demurrers there involved 'is in no sense to be construed as a decision that the plaintiffs are without remedy.' It is further stated that the action is brought to avoid a multiplicity of suits and costs and expenses of appeal, and that plaintiff has a constitutional right to be compensated for the action of the commission either by purchase or condemnation. The order of the alternative writ is that the commission immediately compensate the plaintiff and the parties represented by her or institute condemnation proceedings for compensation of the parties for damages sustained by them, or show cause to the contrary before a day in the alternative writ.
As has been noted, the commission moved the court for an order to quash the alternative writ. Included in the grounds asserted is that the plaintiff has a plain, speedy and adequate remedy in ordinary course of law.
In discussing the questing whether plaintiff has an adequate remedy at law, it is assumed that she was the owner of land taken by the commission in the performance of the improvement mentioned. The rule is well settled that a plaintiff may not invoke the extraordinary writ of mandamus where he has a plain, speedy and adequate remedy available to him in ordinary course in an action at law. See cases cited in West's Kansas Digest, Mandamus k3 and Hatcher's Kansas Digest, Mandamus § 18. Under the Constitution of this state (Art. 12, § 4) it is provided that no right of way shall be appropriated to the use of any corporation until full compensation shall be made therefor, as is more fully stated in that section, and accordingly the Legislature has provided many instances for exercise of the right of eminent domain and for fixing compensation of those whose lands may be taken. Under G.S.1943 Supp. 68-413, the state highway commission was given such power and authority. It is plaintiff's claim that the commission, without invoking statutory procedure, took her land and has not compensated her.
Passing for the moment the question the plaintiff may not sue the commission for the asserted reason it is an arm of the state and not liable to suit, we consider results following appropriation of property where statutory provisions for the exercise of eminent domain have not been followed. In State Highway Comm. v. Puskarich, 148 Kan. 388, loc cit. 390, 83 P.2d 132, 134, it was said: 'It is the settled law in this state that where a corporation, having the power of eminent domain, enters upon and appropriates the land of any person for public purposes, without having acquired the title thereto by formal condemnation or otherwise, the landowner may waive formal condemnation and may sue upon an implied contract for the value of the property taken.' And the first paragraph of the syllabus is in accord. Cases cited in the opinion in support of the above statement will not be reviewed nor mentioned other than Webb v. Crawford Co. Com'rs., 127 Kan. 547, 274 P. 249, where it was held that a county is under a quasi-contractual obligation to pay an owner the reasonable value of gravel which it took without condemnation.
See also Prickett v. Belvue Drainage District, 159 Kan. 136, 152 P.2d 870, Syl. 1.
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