City of Hutchinson v. Wagoner
| Decision Date | 08 November 1947 |
| Docket Number | 36896. |
| Citation | 163 Kan. 735,186 P.2d 243 |
| Parties | CITY OF HUTCHINSON v. WAGONER. |
| Court | Kansas Supreme Court |
Appeal from District Court, Reno County; Clark A. Wallace, Judge pro tem.
Proceeding by the City of Hutchinson to condemn lands for municipal airport, wherein C. D. Wagoner claimed consequential damages resulting from vacation of certain roads, and pursuant to contract between city and landowners, appraisers accepted findings of commissioners concerning damages, and the city appealed to the district court. From a judgment sustaining a motion to dismiss the appeal for lack of jurisdiction, and from other rulings, the city appeals.
Judgment dismissing appeal affirmed.
Syllabus by the Court
1. District courts have such jurisdiction in their respective districts as is provided by law. Art. 3, § 6, State Constitution.
2. The right to an appeal is neither a vested nor a constitutional right. It is purely statutory, and may be limited by the legislature to any class of cases or in any manner, or may be entirely withdrawn.
3. It is the province of the legislature to determine the orders or judgments from which an appeal will lie and to designate the court to which such appeal shall be taken.
4. Jurisdiction of the subject matter of an action is vested by statute and cannot ordinarily be conferred on a court by consent, waiver or estoppel.
5. The record involving an appeal to the district court from findings of commissioners agreed upon by the parties to determine damages alleged to have resulted to landowners from the vacation of roads, examined, and Held: (a) Such commissioners exercised nonjudicial functions; (b) there is no provision for an appeal to the district court from their findings; (c) the record discloses no vacation of roads; and (d) the appeal to the district court was properly dismissed.
Max Wyman, of Hutchinson (Albert S. Teed, City Atty., and Eugene White and Erskine Wyman, all of Hutchinson, on the brief) for appellant.
Walter F. Jones, of Hutchinson, and W. L. Cunningham, of Arkansas City (J. N. Tincher, Clyde Raleigh and J. N. Tincher, Jr. all of Hutchinson, and D. Arthur Walker and William E. Cunningham, both of Arkansas City, on the brief), for appellee.
This appeal arises out of a proceeding instituted by the city of Hutchinson to condemn lands for the enlargement of its municipal airport located outside the city limits.
No part of the land of appellee, C. D. Wagoner, was taken in the condemnation proceeding and the city did not make him a party thereto. He, however, claimed he suffered consequential damages to his farm on which he conducted a nursery business by reason of vacating certain roads in connection with the enlargement of the airport. The merit of that claim is not now before us. The instant appeal presents primarily a jurisdictional question.
The condemnation proceeding was instituted pursuant to the provisions of G. S. 1943 Supp. 3-113 et seq. Its purpose was to enlarge the city's airport in order to meet the requirements of the United States Navy which desired to acquire a lease thereon. In view of the large acreage condemned it was necessary to close certain roads. It appears a representative of the Navy made oral application to the board of county commissioners of Reno county to vacate such roads and that the county commissioners gave notice of a hearing to vacate them. Landowners in the vicinity, including appellee, objected to the vacation. The county commissioners dismissed the vacation proceedings.
Appellant expresses doubt that the foregoing statements concerning the application to vacate and the dismissal of such proceedings were made a part of this record. Appellant, however, commendably states it does not object to our consideration of such facts if they will aid us. For present purposes it will suffice to state appellant does not contend the roads were vacated and the record discloses no vacation by the county commissioners or by the city, assuming the city had power to vacate them. Touching such power of the city we manifestly express no opinion. That question was not ruled by the district court and is not before us for review.
While the condemnation proceeding was pending the county commissioners, the city and certain landowners in the vicinity, including appellee, entered into a triparty agreement, 'For the purpose of facilitating the determination of the amount of damages, if any, sustained by Parties of the Third Part in the enlargement and improvement of The Hutchinson Municipal Airport and the condemnation of additional land therefore requiring the vacation of certain highways * * *.'
That contract was before us for construction in a previous appeal involving another aspect of this controversy. Hutchinson Municipal Airport Cases, Theiss v. City of Hutchinson, 161 Kan. 502, 169 P.2d 615. What was there said need not be repeated here. Reference is, however, made thereto in order to indicate what was determined, and that no contention was therein made by any of the parties that the district court lacked jurisdiction over the appeal to it from the finding of damages resulting from the closing or vacation of highways or over any other matter involved in the litigation. It is quite evident all parties at that time assumed the district court had jurisdiction of the appeal. The question of jurisdiction apparently occurred to counsel for appellee later, as will presently appear.
Portions of the triparty agreement set forth in our former opinion are pertinent here and reference is made thereto without requoting them. For purposes of the instant appeal it is sufficient to state: Appraisers for damages for land condemned were appointed by the district court in the condemnation proceeding; damages for land condemned are not now involved; only damages found to have been sustained by appellee due to alleged vacation of certain roads are involved; the parties to the triparty contract agreed (a) upon three other commissioners to determine the damages sustained by the various landowners, (b) their findings were to be filed in the condemnation case and were to be binding on the appraisers appointed by the court in the condemnation case, (c) the appraisers appointed by the court accepted the findings of the contractual commissioners but in their supplemental report expressly stated they did so only by reason of the agreement of the parties which made those findings conclusive and that such findings did not represent their own views and opinions.
The city appealed to the district court from the findings of the contractual commissioners. On motion of the city, allowed by the district court, appellee was required to file a bill of particulars setting forth his claim for damages. Without any issues being joined by pleadings the city moved for judgment on the pleadings. There was no ruling on that motion. Over the objection of appellee the city introduced evidence in support of that motion and thereafter moved for judgment on the pleadings and evidence introduced in support of the motion. Appellee introduced no evidence. The trial court sustained the city's motion. That part of its judgment we formerly held to be erroneous but the trial court's interpretation of the triparty agreement as to damages was affirmed. The case was remanded for trial. Hutchinson Municipal Airport Cases, supra.
We now reach what transpired next in the district court and the rulings forming the basis of the instant appeal. Appellee filed an amended and a second amended bill of particulars. Appellant's motion to have the latter made definite and certain was overruled. Appellant's general demurrer to the second amended bill of particulars was overruled. Thereafter appellee moved to dismiss the city's appeal to the district court on the ground the court had acquired no jurisdiction of the subject matter by virtue of the attempted appeal. The motion was sustained and the city appeals from that ruling, the ruling on its demurrer and from another portion of the judgment which will be mentioned later. If the court properly dismissed the appeal we, of course, do not reach the ruling on appellant's demurrer.
Did an appeal lie to the district court from the finding of damages made by the contractual commissioners relative to vacation of roads?
Condemnation of land is one thing--vacation of roads is another. This was not an appeal to the district court from an award of damages for land, made by appraisers appointed by the court in the condemnation proceeding, and the law pertaining to such appeals is not applicable.
As previously stated appellee...
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