Burke v. Board of Ed. of Common School Dist. No. 110

• Court: Kansas Supreme Court
• Writing for the Court: SCHROEDER
• Citation: Burke v. Board of Ed. of Common School Dist. No. 110, 313 P.2d 272, 181 Kan. 534 (Kan. 1957)
• Decision Date: 03 July 1957
• Docket Number: No. 40525,40525
• Parties: Loretta R. BURKE, Loretta R. Burke, Executrix of the Last Will and Testament of William R. Burke, Deceased; Edmund F. Burke and James J. Burke, Appellants, v. The BOARD OF EDUCATION OF COMMON SCHOOL DISTRICT NO. 110, Johnson County, State of Kansas, Appellee.

Page 272

313 P.2d 272

181 Kan. 534

Loretta R. BURKE, Loretta R. Burke, Executrix of the Last Will and Testament of William R. Burke, Deceased Edmund F. Burke and James J. Burke, Appellants, v. The BOARD OF EDUCATION OF COMMON SCHOOL DISTRICT NO. 110 Johnson County, State of Kansas, Appellee.

No. 40525.

Supreme Court of Kansas.

July 3, 1957.

Syllabus by the Court

1. Where the petitioner in a condemnation action pays the total amount of the appraisement into court and takes immediate possession and the landowners appeal, resulting in an increase, it is held that the landowners are entitled to interest at six per cent on the amount of the increase only, construing G.S.1955 Supp. 26-102.

2. Under circumstances related in the foregoing syllabus, the landowners are entitled to withdraw the funds paid into court by the condemning authority without prejudice to their right of appeal, construing G.S.1955 Supp. 26-102.

3. Where the parties in a condemnation action stipulate what the date of the taking is under the facts and circumstances of the case, and the trial court enters judgment in reliance upon such stipulation, it is held that the landowners are estopped from later declaring any other date as the date of the taking.

4. Where there has been a special finding made by a jury on particular questions of fact, a judgment does not as a matter of course follow return of the general verdict, and until the trial court orders what judgment shall be entered there is no judgment, applying G.S.1949, 60-3118.

Elmer Hoge, Overland Park, argued the cause and was on the briefs for appellants.

Stuart D. Mitchelson, Mission, argued the cause, and A. J. Pflumm, Mission, was with him on the briefs for appellee.

SCHROEDER, Justice.

This is an appeal by the landowners in a condemnation case in which the only question is the amount of interest allowed by the lower court on the judgment awarding compensation.

The appellants were the owners of real property located in the Northeast Quarter of Section 36, Township 12, Range 24, Johnson County, Kansas, of which the appellee, The Board of Education of Common School District No. 110 of Johnson County, under the right of eminent domain took 8.502 acres for school purposes. The appellee, hereinafter referred to as the School Board, filed its petition in condemnation on the 29th day of November, 1954, in the district court of Johnson County, Kansas. On that date the court determined the sufficiency of the petition, found that the School Board had the power of eminent domain, and found that the lands sought to be condemned were necessary to the lawful purposes of the School Board. It thereupon appointed three commissioners to appraise the value of said lands and assess the damages for the taking of the same. The commissioners published notice that they would meet on December 17, 1954, to appraise the value of said lands and determine the damage, if any, to the remaining tract.

On December 28, 1954, the commissioners filed with the clerk of the district court their report, dated December 17, 1954, in which they appraised the lands taken at $1,500 per acre, or a total of $12,753, and on December 28, 1954, the court approved the appraisement. On the same date, December 28, 1954, the School Board paid into court the amount of the award and court costs.

The appellants appealed to the district court from the award and the case was tried to a jury on the 17th day of June, 1955. The School Board did not appeal. The jury awarded $1,500 per acre for the lands taken, and allowed the sum of $2,649.80 for damages to the remaining tract, the commissioners having awarded nothing as damage to the remaining tract. The total award was thus increased by the jury to the figure of $15,402.80.

The School Board filed a motion for a new trial within three days but it was not brought before the court until a motion for judgment was filed more than one year thereafter by the appellants as follows:

'Motion for Judgment.

'Come now the above named Plaintiffs and move the Court for an order in the event that the Defendant's motion for a new trial be overruled, entering judgment for Plaintiffs and against Defendant in the sum of Fifteen Thousand Four Hundred Two and Eighty Hundredths ($15,402.80) Dollars, together with interest thereon at the rate of six (6%) per cent per annum from the 17th day of December, 1954, to the 17th day of June, 1955, and with interest on the aggregate sum at the rate of six (6%) per cent per annum from the 17th day of June, 1955, until satisfied, and for the cost of this action.'

Hearing was set for the 17th day of July, 1956. On that date the School Board appeared and withdrew its motion for a new trial.

The journal entry of judgment recited the stipulations of the parties. Among them was a stipulation 'That the date of taking the property owned by the plaintiffs was December 17, 1954.' Other stipulations recited the substance of the facts heretofore related.

Following the stipulations pertinent portion of the journal entry material herein read as follows:

'The defendant withdraws motion for new trial and argument is presented on plaintiffs' motion for judgment.

'And the court being fully advised in the premises after hearing said arguments, doth find:

'1. That the plaintiffs are entitled to interest at the rate of 6% per annum on the amount of $2,649.80, from December 17, 1956, [1954] until paid.

'2. That the plaintiffs be not allowed interest on the money paid in to the court within thirty days after the return of the appraisers.

'It Is Therefore Considered, Ordered, Adjudged and Decreed that the plaintiffs have judgment against the defendant in the amount of $15,402.80 plus interest at the rate of 6% per annum from December 17, 1954, on the sum of $2,649.80, until paid, making the amount of the judgment $15,654.61.'

On the 18th day of July, 1956, the School Board made full payment of the balance to the clerk of the district court.

The appellants filed a motion to set aside the judgment, and requested the court to enter judgment in accordance with the motion for judgment heretofore related in full.

This motion of the appellants was overruled on the 24th day of July, 1956, and appeal was properly taken therefrom and from all other rulings adverse to the appellants.

Six specifications of error are set forth, all of which resolve into the single question of interest computation. Insofar as is material to a ruling herein these specifications will be presented in discussing the questions involved.

The first question involves the date from which interest is to be computed in a condemnation action on the facts hereinbefore set forth. It must be noted that prior to the order of the district court on the 17th day of July, 1956, the parties stipulated that the date of the taking of the property owned by the appellants was December 17, 1954. It was upon this stipulation that the court entered its order. The record discloses that the reason this date was specified in the stipulation as the date of the taking was that construction equipment was moved on the premises on this date at the directions of the School Board. See: Cohen v. St. Louis, Ft. S. & W. R. Co., 34 Kan. 158, 8 P. 138.

Appellants' stipulation estops them from declaring any other date as the date of taking. It was only in the post-trial motion after judgment had been entered that the appellants disagreed with their prior stipulation. Clark v. Missouri Pac. R. Co., 134 Kan. 769, 8 P.2d 359; Tamsk v. Continental Oil Co., 158 Kan. 747, 150 P.2d 326; and Stanolind Oil & Gas Co. v. Cities Service Gas Co., 181 Kan. 526, 313 P.2d 279.

The right of the appellants to recover interest is not controverted by the School Board. Great Lakes Pipe Line Co. v. Carson, 168 Kan. 100, 211 P.2d 70. The only question is how much. Where lands are appropriated under eminent domain statutes, 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 the delay in compensation, is properly allowable, provided the award of the appraisers is increased by a jury. Bruna v. State Highway Comm., 146 Kan. 375, 69 P.2d 743; Great Lakes Pipe Line Co. v. Carson, supra; and Flemming v. Ellsworth County Com'rs, 119 Kan. 598, 240 P. 591.

The next question involves the sum of money on which interest is payable. Prior to the adoption of G.S.1955 Supp. 26-102, (L.1953, Ch. 200, effective June 30, 1953), a landowner was not entitled to draw down the amount of a compensation award paid into court and be consistent with his appeal. Miltimore v. City of Augusta, 140 Kan. 520, 38 P.2d 675; Hyland v. Hogue, 131 Kan. 512, 292 P. 750; Wilhite v. Judy, 137 Kan. 589, 21 P.2d 317; and Clothier v. Wallace, 137 Kan. 928, 22 P.2d 462.

Under the law as it then existed, the property owner was entitled to interest on the total amount of the final award when an owner appealed and a jury increased the award of the appraisers. The fact that the condemning authority had deposited the sum of money awarded by the commissioners with the clerk of the district court made no difference. Miltimore v. City of Augusta, supra; Missouri River, Ft. S. & Gulf Railroad Co. v. Owen, 8 Kan. 409; Wichita & W. R. Co. v. Kuhn, 38 Kan. 104, 16 P. 75; Calkins v. Salina N. Railroad Co., 102 Kan. 835, 172 P. 20; and Flemming v. Ellsworth County Com'rs, supra.

The appellants argue that G.S.1955 Supp. 26-102, relates only to cases in which the condemning authority appeals from the commissioners' award and has no applicability to cases where the property owners appeal from the award. This contention is not in accordance with the present statute as we construe it.

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