City of Manhattan v. Eriksen, 45442

• Decision Date: 08 November 1969
• Docket Number: No. 45442,45442
• Citation: 460 P.2d 622,204 Kan. 150
• Parties: In the Matter of the Condemnation of Land by the City of Manhattan, Kansas, a Municipal Corporation, for Off-Street Parking Purposes. The CITY OF MANHATTAN, Kansas, a Municipal Corporation, Appellant, v. Conrad J. K. ERIKSEN et al., Appellees.
• Court: Kansas Supreme Court

Page 622

460 P.2d 622

204 Kan. 150

In the Matter of the Condemnation of Land by the City of Manhattan, Kansas, a Municipal Corporation, for Off-Street Parking Purposes The CITY OF MANHATTAN, Kansas, a Municipal Corporation, Appellant, v. Conrad J. K. ERIKSEN et al., Appellees.

No. 45442.

Supreme Court of Kansas.

Nov. 8, 1969.

Syllabus by the Court

In an eminent domain proceeding where there is a taking of the entire leasehold estate, the cost of removal by the lessee of his goods, wares, merchandise and other personalty for a reasonable distance is not a proper element of damage for which he may be compensated under the Eminent Domain Procedure Act (K.S.A. 26-513).

Charles D. Green, Manhattan, argued the cause and was on the brief, for appellant.

Lee Hornbaker, Junction City, argued the cause, and H. W. Harper, Richard F. Waters, and B. L. Abbott, Junction City, were with him on the brief for appellees, Harding Glass of Kansas, Inc., and Walter Shy, d/b/a Manhattan Cycle Sales.

John C. Fay, Manhattan, argued the cause and was on the brief, for appellees, Blaine Thomas, Sam Gilman and Fred Rooks.

David K. Clark, Manhattan, was on the brief, for appellees, Conard J. K. Eriksen, Harris Miller Oldsmobile, Inc., and Leona Miller.

Donald R. Hill, Manhattan, was on the brief for appellee, Manhattan Buildings, Inc.

John H. Morse, Asst. Atty. Gen., and Dana B. Dodderidge, Staff Atty., appeared on the brief for the State Highway Commission as amicus curiae.

O'CONNOR, Justice:

This is an interlocutory appeal (K.S.A. 60-2102(b)) in a condemnation action instituted February 15, 1968, by the City of Manhattan to acquire five entire tracts of real estate for off-street parking purposes.

The tracts condemned were improved properties occupied by tenants under leases with the respective landowners. The City appeal from the appraisers' award for each of the tracts. On four of the tracts appeals were also taken from the awards by either the landowners (lessors) or one or more of the lessees. The appeals, though separately docketed, were ordered consolidated for a pretrial conference which was held June 21, 1968.

The pretrial order reflects, among other things, that upon the subsequent trial of any appeal the court would instruct the jury that the measure of compensation to the landowners and lessees would be in accordance with instructions previously given the court-appointed appraisers. The district judge found that as to all the pending cases the propriety of his instructions involved controlling questions of law on which there was substantial ground for difference of opinion and that an immediate appeal from the pretrial order would materially advance the ultimate determination of the litgation. Upon the City's application under Rule 5 of this court (201 Kan. XVI), permission was granted to appeal from the district court's order.

The first 'controlling question of law' presented for consideration is stated as follows:

'Is the reasonable cost of the removal by the lessee from the leased premises of his goods, wares, merchandise and other personalty for a reasonable distance, a proper element of damage to the lessee for which said lessee may receive compensation under the Eminent Domain Procedure Act of Kansas?'

The lower court's instruction was to the effect a lessee was entitled to the reasonable cost of removing personalty in addition to the fair and reasonable market value of his leasehold estate.

The appellant (condemnor) contends that a lessee's cost of removing his merchandise and other personal property from the condemned premises is not to be considered for any purpose in an eminent domain proceeding. The appellees (lessees) concede the district court's instruction goes too far by permitting recovery of removal cost as an independent item of damage, but urge that such cost in a proper factor for consideration in determining the market value of the leasehold.

Appellees direct our attention to Bales v. Wichita Midland Val. Railroad Co., 92 Kan. 771, 141 P. 1009, L.R.A.1916C, 1090, where the jury was instructed the cost of removal of goods and fitxures could be considered in determining the value of the unexpired portion of the lease. Whether or not the instruction was proper, however, was not decided, and the case is not authority to support appellees' position.

Our research reveals the precise point has never been passed on by this court.

The great weight of authority is that an owner or lessee of real property taken or damaged in eminent domain is not entitled to recover as a part of just compensation the cost of removing his personal property from the premises. (State ex rel. Willey v. Chun, 91 Ariz. 317, 372 P.2d 324; Ballantyne Co. v. City of Omaha, 173 Neb. 229, 113 N.W.2d 486; Williams v. State Highway Commission, 252 N.C. 141, 113 S.E.2d 263; Housing Authority v. Kosydor, 17 Ill.2d 602, 162 N.E.2d 357; 27 Am.Jur.2d, Eminent Domain § 354; 29A C.J.S. Eminent Domain § 164; Annos. 94 L.Ed. 826, 34 A.L.R. 1523, 90 A.L.R. 165, 156 A.L.R. 397, 3 A.L.R.2d 312; 4 Nichols on Eminent Domain, (3d Ed.) § 14.2471(2).)

Nichols, in discussing the prevailing rule, states:

'In general, the lessee's cost of removing his personal property from the land condemned is not an element meriting consideration in ascertaining his compensation whether such item is considered as a separate, substantive element of damages or whether it is considered insofar as its effect upon the market value of the leasehold is concerned. It has been said that the 'just compensation' to which a lessee is entitled is measured by the market value of his leasehold. He is not entitled to more than that because his expenses are increased in consequence of moving his business to another place * * * Inconvenience and expense incident to vacating the premises upon the expiration of the right to retain them are not proper subjects of consideration in determining the just compensation to be paid by the party acquiring the right to possess and use them. * * *' (pp. 667-670.)

The principles underlying the rule are well expressed in Williams v. State Highway Commission, supra, wherein it was stated:

'The rationale of the decisions for not allowing the damages are: one, the tenant eventually would have to move anyhow, and this is one of the circumstances attached to placing property on leased premises; second, it is not a taking of property within the language of the constitution, in that the expense of moving and injury to the property in moving is neither a taking or damaging of the property; three, a verdict would be based on conjecture; * * *.' (p. 145, 113 S.E.2d p. 266.)

Under federal condemnation proceedings, where there is an entire taking of the property, whether it represents the interest in a leasehold or fee, the cost of removal or relocation is not included in valuing what is taken. In other words, the guarantee of just compensation under the Fifth Amendment to the United States Constitution does not provide for allowance for consequential losses. (United States v. Westinghouse Co., 339 U.S. 261, 70 S.Ct. 644, 94 L.Ed. 816; United States v. Petty Motor Co., 327 U.S. 372, 66 S.Ct. 596, 90 L.Ed. 729; United States v. General Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed....