Bumm v. Colvin

• Decision Date: 03 July 1957
• Docket Number: No. 40622,40622
• Citation: Bumm v. Colvin, 312 P.2d 827, 181 Kan. 630 (Kan. 1957)
• Parties: Frederick H. BUMM, Appellant, v. Amos C. COLVIN, Carl H. Becker, and Irvin E. Toevs, as Commissioners in Condemnation Appointed by the District Judge of Harvey County, Kansas, and The City of Wichita, Kansas, Appellees.
• Court: Kansas Supreme Court

Page 827

312 P.2d 827

181 Kan. 630

Frederick H. BUMM, Appellant, v. Amos C. COLVIN, Carl H. Becker, and Irvin E. Toevs, as Commissioners in Condemnation Appointed by the District Judge of Harvey County, Kansas and The City of Wichita Kansas, Appellees.

No. 40622.

Supreme Court of Kansas.

July 3, 1957.

Rehearing Denied July 26, 1957.

Syllabus by the Court

The record examined in an action for a declaratory judgment and for injunctive relief, which was dismissed by the district court for the reason the questions presented by the pleadings and the record were moot, and held: as more fully set forth in the opinion, the order of dismissal was not erroneous.

Kenneth G. Speir, Newton, argued the cause, and Vernon A. Stroberg and Herbert H. Sizemore, Newton, were with him on the briefs for appellant.

J. G. Somers, Newton, argued the cause, and George A. Robb, Newton, was with him on the briefs for appellee Condemnation Com'rs.

Robert B. Morton, Wichita, argued the cause, Paul J. Donaldson, Wichita, and J. Rodney Stone, Newton, were with him on the briefs for appellee, The City of Witchita, Kansas.

FATZER, Justice.

This is an appeal from a judgment dismissing an action for a declaratory judgment and for injunctive relief upon the ground that the subject matter of the lawsuit, the installation of an air inlet and relief manhole, had been installed upon the permanent right of way across plaintiff's land previously acquired by the City of Wichita, and the case was moot.

The pertinent facts giving rise to this appeal are summarized as follows: On January 10, 1956, and pursuant to G.S.1949, 26-201 et seq., as amended, the City of Wichita, hereafter referred to as the City, presented its petition and application in condemnation to the judge of the district court of Harvey County, Kansas, in case No. 13,281, who appointed commissioners in condemnation to appraise and assess damages for the taking of plaintiff's land for public use. On May 8, 1956, and as a result of that proceeding, the City acquired the right to possess, occupy, use and improve a permanent right of way 50 feet wide across plaintiff's land, and in addition, two strips of land 25 feet wide for temporary rights of way and construction easements on each side of the permanent right of way. Those rights of way were acquired by the City of the installation, maintenance and operation of a 66-inch steel water supply pipe line for the purpose of transporting and supplying water to the City, its environs and inhabitants from the geological formation located in Harvey County an known as the Equus Beds. As a part of the installation, maintenance and operation of that pipe line, the City also acquired the right to install and operate two air inlets and relief manholes, one approximately 9 1/2 X 10 feet in dimension and the other 4 1/2 X 9 feet in dimension, each projecting approximately one foot have the surface of the ground, and located within the boundary lines of the rights of way. Damages awarded to plaintiff and other landowners as a result of that taking were deposited with the treasurer of the City and certified as being available for payment. Plaintiff did not appeal from the report of the commissioners nor were any actions commenced challenging the validity of that condemnation proceeding.

Later, the City ascertained the necessity of constructing an additional air inlet and relief manhole for the proper use of that pipe line, and on August 24, 1956, instituted a second condemnation proceeding, the one involved in this controversy, by presenting its petition and application to the judge of the district court of Harvey County, case No. 13,345. Pursuant to that request, the judge of the district court appointed three commissioners in condemnation, who, together with the City, are defendants in the present action.

The petition and application of the City in case No. 13,345 alleged that it obtained title to the rights of way across plaintiff's land on May 8, 1956, in case No. 13,281; that for the purpose of constructing, extending and improving the water supply and waterworks system of the City for use in supplying said City and its environs and inhabitants with water, it was necessary for the City to acquire the right to install, maintain and operate an additional air inlet and relief manhole entirely within the boundary lines of its rights of way across plaintiff's land. The prayer of that petition and application was that commissioners be appointed to view and appraise the value of the additional use right in said rights of way and to assess damages to plaintiff as a result of such appropriation and to award him the damages so determined.

Immediately after the filing of the City's petition and application in case No. 13,345, plaintiff instituted the present action and alleged that the City did not have lawful authority to condemn the lands of plaintiff for the purposes intended; that such proceeding was in furtherance of an unlawful and unauthorized purpose; that it was premature and involved an unnecessary, arbitrary, capricious and unlawful act upon the part of the City; that the proceedings in condemnation in case No. 13,345 were null and void for the reasons set forth; that the proceedings of the commissioners in case No. 13,345 were null and void, and if said commissioners filed a report as commissioners, such report would be null and void and that the City did not acquire any right, title, estate or interest in plaintiff's property by reason of any action taken by it, or by any actions or proceedings of the commissioners in the proceedings; that a temporary injunction and a permanent injunction should be issued enjoining the commissioners from proceeding further with the condemnation of plaintiff's land and a restraining order, a temporary injunction and a permanent injunction should be issued restraining and enjoining the City from having or claiming any right, title, estate or interest in plaintiff's land and from entering upon such land. Appropriate allegations were made that an actual controversy existed between plaintiff and the City and the defendant commissioners, all of which were that the City had no authority to condemn plaintiff's land, and that to permit the commissioners to proceed further and file their report would result in the City acquiring an interest in plaintiff's land contrary to the laws of Kansas without due process of law, and that plaintiff had no adequate remedy at law. The prayer was that the condemnation proceedings be declared null and void; that the City be adjudged to have no right, title, estate or interest in plaintiff's land; and that the commissioners and the City be temporarily and permanently enjoined from proceeding further with the condemnation.

On September 6, 1956, plaintiff filed proper motions for a restraining order and a temporary injunction, which were denied on that date by the district court. However, plaintiff did not appeal from the order denying the temporary injunction. Thereafter the defendant commissioners and the City each filed demurrers to plaintiff's amended petition.

On November 12, 1956, defendants' demurrers were heard by the district court. At that time counsel for plaintiff, with complete candor and frankness and in compliance with his duty as an ethical member of the Bar, advised the district court that the subject matter of the lawsuit, i. e., the installation of the air inlet and relief manhole in the City's rights of way across the plaintiff's land, had been installed by the City. Whereupon counsel for plaintiff made the following observation:

"Mr. Speir: The point is, if the court please, there would be no point in getting into a long, drawn-out trial in litigation if the case is moot. Then the demurrer should be treated as a motion to dismiss on the ground that the case is moot because the installations have been made, the subject matter of the lawsuit, and then I believe I would have to concede Dick against Drainage District 2, which is reported in 175 Kan. at 869 [267 P.2d at 494] is controlling. * * *

"* * * And, if that is the situation, if the court please, then I think the court perhaps not only could but should treat these demurrers as motions to dismiss on the ground that the cause of action is moot and let me go from there. * * *"

Upon consideration of the petition and the statement of plaintiff's counsel, the district court found that the conditions and circumstances then existing brought the case within the rule announced in Dick v. Drainage District No. 2, 175 Kan. 869, 267 P.2d 494, and for that reason the case was moot, and treating the demurrers as motions to dismiss, ordered the action dismissed. As previously indicated, plaintiff has appealed from that order.

To pin point the issues involved in this appeal we quote from plaintiff's brief:

'The sole and only question presented by this appeal is: 'Will this Court adhere to the position taken in the case of Dick v. Drainage District No. 2, 175 Kan. 869 [267 P.2d 494] or shall such case be held either inapplicable or specifically overruled in order that plaintiff-appellant shall be protected in his rights, as guaranteed by the Constitution of the State of Kansas and the 14th Amendment to the Constitution of the United States?''

With respect to overruling Dick v. Drainage District No. 2, supra, we have reviewed that holding and conclude no sound reason exists for our overruling it, and we adhere to that decision.

We wish to point out, as preliminary to our discussion of the remaining legal point raised by plaintiff, that it was stated upon oral argument the judgment rendered in the first condemnation proceeding ...