Bruna v. State Highway Commission

• Decision Date: 10 July 1937
• Docket Number: 33468.
• Citation: 69 P.2d 743,146 Kan. 375
• Parties: BRUNA et al. v. STATE HIGHWAY COMMISSION. NEMEC et al. v. SAME.
• Court: Kansas Supreme Court

69 P.2d 743

146 Kan. 375

BRUNA et al. v. STATE HIGHWAY COMMISSION.

NEMEC et al. v. SAME.

No. 33468.

Supreme Court of Kansas

July 10, 1937

Syllabus by the Court.

Generally interest on value of lands taken by condemnation proceedings and of damages for taking of property from time of taking until final payment or damages in nature of interest for delay in compensation is allowable where there is substantial lapse of time between actual taking of property and payment (Gen.St.1935, 26-101 et seq.).

A landowner who appeals from condemnation award made by appraisers is not entitled to interest on value of lands taken and of damages for taking of property from time of taking until final payment where jury awards less amount than that awarded by appraisers (Gen.St.1935, 26-101 et seq.).

Where reviewing court strikes out erroneous allowance of interest on appeal by condemnor from judgment allowing interest on amount awarded by jury which was less than amount awarded by appraisers, landowner is not entitled to interest after date of judgment (Gen.St.1935, 26-101 et seq.).

Landowner who rejects condemnor's tender of amount in full satisfaction and who fails to recover judgment for more than tender must pay costs of condemnor from time of offer (Gen.St.1935, 60-2936).

1. Where lands are appropriated under the statutes with reference to eminent domain (G.S.1935, c. 26), the general rule is that where there is a substantial lapse of time between the actual taking of the property and the payment interest on the value of the lands taken and of the damages for the taking of the property from the time of taking until final payment, or what amounts to the same thing, damages in the nature of interest for delay in compensation, is properly allowable; but if the landowner appeal from the award made by the appraisers and the jury award him a less amount, then he is not entitled to interest.

2. Where the condemnor and the landowner both appeal, and the jury awards a less amount than the amount awarded by the appraisers, and the trial court erroneously allows interest on the amount awarded by the jury from date of the condemnation to date of the judgment and renders judgment therefor, and on appeal by the condemnor the appellate court strikes out the allowance of interest, the landowner is not entitled to interest after the date of judgment.

3. Where the condemnor tenders into court a sum in full satisfaction, under G.S. 1935, 60-2936, unless the landowner recover judgment for more than the tender, he must pay the costs of the condemnor from the time of the offer.

Appeal from District Court, Washington County; Tom Kennett, Judge.

Two condemnation proceedings by the State Highway Commission against Tony Bruna and another and Mary Nemec and others. From a judgment of the district court on the landowners' appeals from condemnation award, the State Highway Commission appeals.

Reversed in part and remanded, with instructions.

Wint Smith, assistant attorney general, Robert Osborn and Ralph M Hope, both of Topeka, and L. W. Rosenkranz, of Washington Kan., for appellant.

F. R. Lobaugh, of Washington, Kan., and W. J. Gregg and E. M. Gregg, both of Frankfort, for appellees.

THIELE Justice.

The State Highway Commission appeals from judgments rendered in condemnation proceedings allowing landowners interest upon the awards of the jury, as well as for costs. Although separate tracts of land owned by different persons were involved, the appeals from the award of the appraisers were tried together in the district court, and as in each case substantially the same questions are presented, they were argued together in this court.

In connection with the construction of the United States highway No. 36, appraisers were appointed by the district court to appraise the damages, and on February 10, 1936, in the Bruna case fixed the amount at $2,613.51, and in the Nemec case at $3,155.65. As soon as the lands were condemned, the Highway Commission went into possession and commenced the proposed improvement. Not being satisfied with the award of the appraisers, the Highway Commission did not deposit the amount of the award, but filed its notice of appeal in both cases, and each landowner, being likewise dissatisfied, also appealed. These appeals were not heard until in December, 1936. At the beginning of the trial, the Highway Commission tendered into court in the Bruna case the sum of $1,800, and in the Nemec case the sum of $2,000, as full compensation for lands taken and damages. Neither tender was accepted, and after trial the jury returned a verdict in the Bruna case for $2,349.42 with interest at 6 percent. from February 10, 1936, and in the Nemec case for $1,889.72 with interest at the same rate from the same date. It thus appears that in each case the award of the jury was less then the award of the appraisers, and that in the Bruna case the award of the jury was more than the amount of the Highway Commission's tender, and in the Nemec case the jury's award was less than the tender. The Highway Commission filed a motion in each case to have the allowance of interest stricken from the award. The trial court denied these motions, and in the Bruna case rendered judgment for the amount of the award, interest thereon, and for costs in favor of Bruna, and in the Nemec case for the amount of the award, interest thereon, and for costs accrued prior to the tender made in favor of Nemec, costs accruing subsequent to the tender to be paid by Nemec. The appeals to this court followed, the assigned errors being the allowance of interest and costs.

The general rule with respect to the allowance of interest on...