Carpenter v. Fager

• Decision Date: 13 May 1961
• Docket Number: No. 42174,42174
• Citation: 188 Kan. 234,361 P.2d 861
• Parties: Jack CARPENTER and Dorotha Carpenter, Husband and Wife, and Otto Plagens, Appellees, v. Ivah J. FAGER, F. G. Stearns and J. Merwyn Fager, Trustees Under the Will and of the Estate of C. C. Fager, Deceased; Ivah J. Fager, J. Merwyn Fager and Josephine Fager, His Wife; Carol Ann Fager, a Minor, and Nellie Virginia Fager, a Minor, Appellants.
• Court: Kansas Supreme Court

Page 861

361 P.2d 861

188 Kan. 234

Jack CARPENTER and Dorotha Carpenter, Husband and Wife, and Otto Plagens, Appellees, v. Ivah J. FAGER, F. G. Stearns and J. Merwyn Fager, Trustees Under the Will and of the Estate of C. C. Fager, Deceased Ivah J. Fager, J. Merwyn Fager and Josephine Fager, His Wife; Carol Ann Fager, a Minor, and Nellie Virginia Fager, a Minor, Appellants.

No. 42174.

Supreme Court of Kansas.

May 13, 1961.

Syllabus by the Court

Generally, the servient estate in a strip of land condemned for public use, such as a highway, railroad or other public purpose, passes with conveyance of fee to the abutting tract of land out of which the strip was carved, even though no express provision to that effect is contained in the conveyance, unless it is excluded by clear, unequivocal and unmistakeable language.

Donald L. Cordes, Wichita, argued the cause, and George B. Powers, Carl T. Smith, John F. Eberhardt, Stuart R. Carter, Robert C. Foulston, Malcolm Miller, Robert N. Partridge, Robert M. Siefkin, Richard C. Harris, Gerald Sawatzky and Robert L. Howard, Wichita, were with him on the briefs for appellants.

James D. Van Pelt, Wichita, argued the cause, and Dale M. Bryant, Morris H. Cundiff Garner E. Shriver, Glenn J. Shanahan and Orlin L. Wagner, Wichita, were with him on the briefs for appellees.

WERTZ, Justice.

Plaintiffs (appellees), Jack and Dorotha Carpenter and Otto Plagens, successors in title from C. C. Fager, brought this action against the heirs of C. C. Fager, deceased, defendants (appellants), and others not concerned with the question involved herein, to quiet title to the property in question involving some 32 acres, .92 of an acre of which is in controversy. From an order or the trial court finding plaintiffs to be the owners in fee simple of the real estate in question, subject only to the surface easement of the Sunflower Improvement District for improvement district purposes, and entering judgment accordingly, quieting title in plaintiffs, defendants appeal.

In September, 1951, C. C. Fager owned the 32 acres of land, and at that time the Sunflower Improvement District instituted condemnation proceedings condemning, for public use, the .92 of an acre, consisting of a narrow strip 20 to 80 feet wide across the southernmost portion of the land now in possession of the plaintiffs. A sewage disposal plant operated by Sunflower occupies the surface of the narrow strip condemned for that purpose.

After the death of C. C. Fager, the remaining land lying immediately north of and contiguous to the Sunflower strip was surveyed by metes and bounds and included in the inventory of Mr. Fager's estate. In 1952, this land was conveyed by the executors of the Fager estate to the Southwestern Electrical Company. It, in turn, conveyed the property to the Carpenters, who, in turn, conveyed a one-half interest to Plagens. All the deeds described the property in metes and bounds and did not describe any portion of the land condemned by Sunflower, although it was contiguous thereto.

This action apparently arose as a result of our decision in Sutton v. Frazier, 183 Kan. 33, 325 P.2d 338, wherein we held that under the applicable statute Sunflower had no right to condemn the fee in the .92 of an acre, and that Sunflower did not acquire title to the minerals in place by the condemnation proceedings. We stated therein that 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, either expressly or by necessary implication, provides otherwise. It follows that Sunflower, by its condemnation, took nothing more than an easement and only so much of the surface as was needed to build thereon and operate a good and sufficient disposal plant for the public, and the fee title to the .92 of an acre, therefore, remained in C. C. Fager.

It is the contention of the plaintiffs that when the executors of the estate of C. C. Fager, deceased, conveyed the tract of land adjoining the property condemned by Sunflower, the grantors conveyed the servient estate in the property so condemned. Plaintiffs base their argument on the general rule followed in this state that when an owner conveys a tract of land abutting on a small parcel in which the grantors own the servient estate and another party owns the dominant estate for easement or right-of-way purposes, the conveyance passes such servient estate to his grantee, unless the intention not to do so is clearly indicated, by specific reservation, in the deed.

The defendant trustees and heirs contend that such grant to the plaintiffs did not pass the servient estate in the property condemned by Sunflower for the reason that the grantors did not intend to convey the servient estate, and for the further reason that a dominant-servient estate situation does not exist in a case where property is condemned for public use other than for highway and railroad purposes, and that the highway and railroad rule should not be extended to apply in the instant case.

We think plaintiffs' contention is correct. One whose property is subjected to condemnation for public use is nonetheless the owner of the fee and holder of the ultimate title. He has what the law calls the servient estate. The public body for whose purpose the condemnation was made has what is called the dominant estate, and while the fee holder, after condemnation, may not interfere with the rights of the holder of the dominant estate, yet, as owner, he may still continue to use the property for any purpose which does not frustrate the public use for which the property was condemned. Harvey v. Missouri Pac. Railroad Co., 111 Kan. 371, 207 P. 761, 50 A.L.R. 300; Federal Farm Mortgage Corp. v. Smith, 149 Kan. 789, 791,...