Board of Ed. of Unified School Dist. 512 v. Vic Regnier Builders, Inc.
| Citation | 636 P.2d 802,6 Kan.App.2d 888 |
| Decision Date | 25 November 1981 |
| Docket Number | No. 52203,52203 |
| Court | Court of Appeals of Kansas |
| Parties | , 1 Ed. Law Rep. 707 The BOARD OF EDUCATION OF UNIFIED SCHOOL DISTRICT 512, Appellee, v. VIC REGNIER BUILDERS, INC. and Dennis L. Steele and Frances Steele, Appellants. |
Syllabus by the Court
1. The power of eminent domain can only be exercised pursuant to some specific authorization by legislative enactment.
2. The extent of any taking by eminent domain is limited to that estate, title, or interest expressly authorized by the enabling legislation and no person can be divested of any greater interest by condemnation than is authorized by the enabling statute.
3. An eminent domain statute will be construed to authorize only the taking of an easement or an interest in land sufficient for the public use intended rather than a fee title, unless the enabling statute clearly provides otherwise, either expressly or by necessary implication.
4. G.S.1949, 26-101 outlined the procedure for the condemnation of land by a corporation having the right of eminent domain in 1956 and 1959. It contained no grant of power and could not affect the extent of the authority exercised under an enabling act.
5. A school district which condemned private property under authority of G.S.1949, 72-4701 (1955 Supp.), for use as a site for school buildings, or any other school purpose, did not acquire the fee simple title to the land condemned. When said school district ceases to use the property for school purposes and abandons the same, title to the property reverts to the former owners, their heirs, and assigns.
H. Thomas Payne of Payne & Jones, Chartered, Olathe, for appellant.
Robert F. Bennett of Bennett, Lytle, Wetzler, Winn & Martin, Prairie Village, for appellee.
Before FROMME, Justice Presiding, PARKS, J., and B. MACK BRYANT, District Judge Retired, Assigned.
FROMME, Justice Presiding:
The plaintiff school district brought this action to quiet its title to certain real estate in Johnson County, Kansas, on which certain school buildings are located. The action was brought against the former owners of the real estate who had been divested of title in eminent domain proceedings in 1956 and 1959. The question to be decided is whether the eminent domain statute, G.S.1949, 72-4701 (1955 Supp.), under which title was acquired by the district, authorized the taking of fee simple title. The district court held that it did, that the school district acquired fee simple title, and that the title of the school district should be quieted against the claims of the former owners. The former owners appeal to this court and we reverse.
The following facts are undisputed: In 1956 the predecessor of U.S.D. 512 acquired the property of the defendants, Dennis L. Steele and Frances C. Steele, by right of eminent domain. The parties do not question the regularity of those proceedings, only the extent of the title acquired. The pleadings in the condemnation action merely alleged it was necessary to appropriate and acquire the private property for use for a site for a school building. The appraisers appraised the land and assessed damages both for the value of the tract and for severance. The journal entry provides that upon payment of $15,000.00 plus court costs and appraiser's fees, the title to said lands shall immediately vest in the school district. The amount was paid into court and the school district proceeded to construct a building thereon.
In 1959, three years later, the predecessor of U.S.D. 512 commenced a similar proceeding to acquire certain property of the defendant Vic Regnier Builders, Inc., which was adjacent to the property previously acquired from the Steeles. The eminent domain proceedings were undertaken pursuant to the authority of G.S.1949, 72-4701 (1955 Supp.), as before, and the petition alleges the necessity for appropriating the property for the lawful purposes of the school district. The journal entry recited that the district had the right of eminent domain for the purpose of appropriating the land described in its petition to be used as an addition to and an extension of its present school building site. The appraisers valued the land and set damages at $10,500.00. The amount was paid into court and the school district has since held possession of the property. The parties do not question the regularity of these proceedings, only the extent of the title acquired.
As a result of these two condemnation proceedings, the plaintiff's predecessors acquired the property, constructed a school building, and added to the school building site. The property so condemned became part of the Marsha Bagby Grade School Attendance Center.
Thereafter, the number of students attending at this attendance facility dropped and in 1978 the electors within the area voted to close the school since it was no longer needed as an attendance facility. Plaintiff alleges in its petition that the building continues to be used for school purposes, including the offices for the Special Education Department of the district, and that the school board now desires to clear title to the real estate so that the property may be sold or otherwise disposed of. The defendants answered and alleged that the school district acquired only the right to use the two parcels of land as a site for school buildings and for other school purposes. They further allege that the property has been abandoned, that it is no longer being used for the purposes authorized, and that, when abandoned, the title to the property reverts to the former owners, the defendants.
We note that the defendants filed cross-petitions raising additional issues, each claiming title not only as against the plaintiff but also as against each other. The district court did not reach these issues for it held plaintiff acquired fee simple title, thus excluding any and all claims by the defendants.
The power of eminent domain can only be exercised pursuant to some specific authorization by legislative enactment. Soden v. State Highway Commission, 192 Kan. 241, 244, 387 P.2d 182 (1963).
The extent of any taking by eminent domain is limited to that estate, title, or interest expressly authorized by the enabling legislation and no person can be divested of any greater interest by condemnation than is authorized by the enabling statute. Sutton v. Frazier, 183 Kan. 33, 39, 325 P.2d 338 (1958).
The enabling legislation empowering the school board in the present case to acquire the defendants' properties provided:
G.S.1949, 72-4701 (1955 Supp.). Emphasis supplied.
We note in reading this statute, neither the word "title" nor the phrase "fee simple title" appears in the statute to indicate the extent of any interest to be taken.
An eminent domain statute will be construed to authorize only the taking of an easement or an interest in land sufficient for the public use intended rather than a fee title, unless the enabling statute clearly provides otherwise, either expressly or by necessary implication. Kansas Gas & Electric Co. v. Winn, 227 Kan. 101, 104, 605 P.2d 125 (1980); Devena v. Common School District, 186 Kan. 166, 170, 348 P.2d 827 (1960); State, ex rel., v. State Highway Comm., 163 Kan. 187, 196, 182 P.2d 127 (1947).
The defendant-appellants rely heavily on Sutton v. Frazier, 183 Kan. 33, 325 P.2d 338, and Kansas Gas & Electric Co. v. Winn, 227 Kan. 101, 605 P.2d 125, in support of their argument that the school district acquired only an easement. The Sutton case involved the condemnation of property to construct sewage disposal plants. The court in Sutton examined G.S.1949, 19-2765 which provided:
" 'That every improvement district incorporated under the terms of this act shall have the power:
....
" 'Third, to plan and construct public works and improvements necessary for public health, convenience or welfare within the limits of the improvement district. Also to construct works outside the limits of the district which may be necessary to secure outlets, disposal, etc., and permit satisfactory performance of the works within the district.
....
" 'Fifth, to take private property for public use by exercise of the right of eminent domain as provided by law.' " 183 Kan. at 40, 325 P.2d 338.
The court in Sutton used strong language in reaching its conclusion that the sewer district did not acquire fee title:
...
To continue reading
Request your trial
-
Board of Educ. of Unified School Dist. 512 v. Vic Regnier Builders, Inc.
...appealed to the Court of Appeals which reversed the district court in a published opinion in Board of Education of U. S. D. 512 v. Vic Regnier Builders, Inc., 6 Kan.App.2d 888, 636 P.2d 820 (1981). The Supreme Court granted the school district's petition for The undisputed facts are set for......