Board of Educ. of Unified School Dist. 512 v. Vic Regnier Builders, Inc.

• Decision Date: 22 July 1982
• Docket Number: No. 52203,52203
• Citation: 231 Kan. 731,648 P.2d 1143
• Parties: , 5 Ed. Law Rep. 1035 The BOARD OF EDUCATION OF UNIFIED SCHOOL DISTRICT 512, Plaintiff and Appellee, v. VIC REGNIER BUILDERS, INC. and Dennis L. Steele and Frances Steele, Defendants and Appellants.
• Court: Kansas Supreme Court

Page 1143

648 P.2d 1143

231 Kan. 731, 5 Ed. Law Rep. 1035

The BOARD OF EDUCATION OF UNIFIED SCHOOL DISTRICT 512 Plaintiff and Appellee, v. VIC REGNIER BUILDERS, INC. and Dennis L. Steele and Frances Steele, Defendants and Appellants.

No. 52203.

Supreme Court of Kansas.

July 22, 1982.

Syllabus by the Court

1. The general principles of law to be applied in determining the extent of the interest acquired by a condemner in an eminent domain proceeding are set forth in the opinion.

2. In determining legislative intent, courts are not limited to a mere consideration of the language used, but look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested.

3. The adoption of an earlier statute by reference makes it as much a part of the later act as though it had been incorporated at full length.

4. 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, acquired the fee simple title to the land condemned. If the use for a school building site is discontinued or abandoned, there is no reversion and the school district may devote it to other uses or sell it in the same manner as an ordinary private owner.

H. Thomas Payne, of Payne & Jones, Chartered, Olathe, argued the cause, and L. Franklin Taylor, Olathe, Elmer Hoge, Overland Park, and James T. Britt, of Spencer, Fane, Britt & Browne, Kansas City, Mo., were with him on the briefs for appellants.

Robert F. Bennett, of Bennett, Lytle, Wetzler, Winn & Martin, Prairie Village, argued the cause and was on the briefs for appellee.

Dennis McFall, Lawrence, was on the brief for amicus curiae, Kansas Ass'n of School Bds.

PRAGER, Justice:

This is an action brought by the plaintiff, Board of Education of Unified School District No. 512, to quiet its title to certain real estate located in Johnson County on which certain school buildings are located. The action was brought against the defendants, Vic Regnier Builders, Inc., Dennis L. Steele and Frances Steele, former owners of the real estate who had been divested of title in eminent domain proceedings in 1956 and 1959. The basic issue 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 a fee simple title. The district court held that the school district acquired fee title and that the plaintiff's title should be quieted against the claims of the defendants as former owners. The defendants 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 review.

The undisputed facts are set forth in the decision of the Court of Appeals and are as follows: In 1956, the predecessor of U.S.D. 512 acquired the property of the defendants, Dennis L. Steele and Frances Steele, for a school site by right of eminent domain under G.S.1949, 72-4701 (1955 Supp.). 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, plus court costs and appraiser's fees, the title of 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 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 alleged 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. 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 predecessor acquired the property, constructed a school building, and added to the school building site. It appears from the briefs in the case that the school district expended in excess of $850,000 for construction and additions to the school building. 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.

Simply stated, the basic issue presented in the case is whether the plaintiff school district acquired the fee title to the property in the two condemnation proceedings held in 1956 and 1959. As noted above, the district court held that it did, and the Court of Appeals held that it did not. As will be obvious in the course of the opinion, the issue presented is not without difficulty and there is a fair and reasonable argument to be made on both sides.

Before turning to a solution of our problem, it would be helpful to consider some of the basic principles of law recognized and applied by the courts in determining the extent of the interest acquired by a condemner in an eminent domain proceeding. There is an extensive discussion on the subject of the title acquired by eminent domain in Chapter 9 of 3 Nichols on Eminent Domain (3rd ed. rev. 1981) commencing at Section 9.1. In that chapter, the author cites many cases throughout the country, including Kansas cases, recognizing the following general principles:

(1) The general rule is that only such an estate in the property sought to be acquired by eminent domain may be taken as is reasonably necessary for the accomplishment of the purpose in aid of which the proceeding is brought. Carpenter v. Fager, 188 Kan. 234, 361 P.2d 861 (1961); Sutton v. Frazier, 183 Kan. 33, 325 P.2d 338 (1958); Federal Farm Mortgage Corp. v. Smith, 149 Kan. 789, 89 P.2d 838 (1939); County of Shawnee v. Beckwith, 10 Kan.

Page 603

(1873).

(2) Unless there is a constitutional inhibition upon the power of the legislature in this respect, the latter has the sole power to determine what shall be acquired both as to the quantum and quality of estate. The Kansas Constitution places no limitations or restrictions on the title of land which may be acquired by the process of eminent domain. Thus, the legislature has the full power to determine the nature of the title to be so acquired by the condemner. Devena v. Common School District, 186 Kan. 166, 348 P.2d 827 (1960); Sutton v. Frazier, 183 Kan. 33, 325 P.2d 338; State ex rel. v. State Highway Comm., 163 Kan. 187, 182 P.2d 127 (1947).

(3) The general rule is that eminent domain statutes will be construed to authorize only the taking of an easement on or title to land sufficient for the public use intended rather than a fee title, unless the statute clearly so provides, either expressly or by necessary implication. Sutton v. Frazier, 183 Kan. at 41, 325 P.2d 338; State ex rel. v. State Highway Comm., 163 Kan. 187, 182 P.2d 127. No precise words are necessary in a statute to authorize condemnation of a fee simple absolute, nor is it necessary that the authority to take a fee be given in express terms. Devena v. Common School District, 186 Kan. 166, 348 P.2d 827; Buckwalter v. School District, 65 Kan. 603, 70 P. 605 (1902).

(4) In the absence of express or precise provisions, the intention of the statute and the construction to be put upon its terms may be gathered from its general scope and tenor, and the nature of the public use for which the condemnation is authorized. If the legislative intention to vest the fee is thus made clear, and this intention is consistent with the language employed, effect will be given to the intention. This is especially true where a remaining private ownership is inconsistent with the use for which the land is taken, and where the purposes of the condemnation will not be satisfied by the taking of a lesser estate or easement. Wood v. City of Mobile, 107 F. 846 (5th Cir. 1901); United States v. 635.76 Acres of Land, etc., Arkansas, 319 F.Supp. 763 (W.D.Ark.1970).

(5) If a public easement has been taken which is subsequently discontinued or abandoned, the land reverts to the owner of the fee, free from any rights of the public. Federal Farm Mortgage Corp. v. Smith, 149 Kan. at 791, 89...