City of Westwood v. M & M Oil Co., Inc.

• Decision Date: 17 April 1981
• Docket Number: No. 52155,52155
• Court: Kansas Court of Appeals
• Parties: CITY OF WESTWOOD, Kansas, a Municipal Corporation, Appellee, v. M & M OIL COMPANY, INC., Appellant.

Page 817

626 P.2d 817

6 Kan.App.2d 48

CITY OF WESTWOOD, Kansas, a Municipal Corporation, Appellee, v. M & M OIL COMPANY, INC., Appellant.

No. 52155.

Court of Appeals of Kansas.

April 17, 1981.

Review Denied June 19, 1981.

Syllabus by the Court

The dismissal of a condemnation action by the plaintiff, after purchasing the property by agreement with the owner, does not constitute "abandonment" of the condemnation so as to obligate the plaintiff to pay a defendant for his reasonable expenses incurred in defense of the action, as the term "abandonment" is used in K.S.A. 26-507(b ).

Eugene C. Riling, of Riling, Norwood, Burkhead & Fairchild, Chartered, Lawrence, for appellant.

Jerry J. Hess, Overland Park, for appellee.

Before FROMME, Justice, Presiding, PARKS, J., and TYLER C. LOCKETT, District Judge, Assigned.

FROMME, Judge, presiding:

This is an appeal from an eminent domain proceeding initiated by the city of Westwood. M & M Oil Company, Inc., a lessee of the property, appeals from an order disallowing its expenses in the proceeding.

The city of Westwood filed a petition on January 16, 1980, in the District Court of Johnson County, Kansas seeking to exercise the power of eminent domain per K.S.A. 26-201 et seq., over land commonly referred to as 47th and Rainbow Blvd. Defendants named in the petition were Juliette M. Finch, Suzanne Finch a/k/a Suzanne R. Finch, Phillips Petroleum Company, and M & M Oil Company, Inc. A motion to amend the petition was granted on February 4, 1980, and European Motors, Inc., Bob Cole, Pat Griggs, Paul Griggs, and Steve Griggs were added as defendants.

Some of the above named defendants were fee owners and some were lessees. We do not know who were owners from the record, but we do know the appellant herein, M & M Oil Company, Inc., holds a leasehold interest in the property until December 1, 1983, with an option to purchase. M & M hired a real estate appraiser and attorneys to represent its interests in the proceeding. The merits of the matter were never heard. No court appraisers were appointed. The right of the city of Westwood to condemn the real estate was never determined. By an ex parte order the action was dismissed on oral motion of the city.

The city of Westwood entered into an agreement with the owners of the property and purchased the property, subject to defendant's leasehold interest. This was accomplished at some point in time prior to the dismissal of the action.

M & M Oil Company, Inc. then filed a motion for allowance of reasonable expenses pursuant to K.S.A. 26-507(b ). A hearing on said motion was held and the motion was denied by the court. M & M timely filed a notice of appeal.

The statute allowing expenses in eminent domain proceedings is as follows:

"(a ) Payment of award; vesting of rights. If the plaintiff desires to continue with the proceeding as to particular tracts it shall, within thirty (30) days from the time the appraisers' report is filed pay to the clerk of the district court the amount of the appraisers' award as to those particular tracts and court costs accrued to date, including appraisers' fees. Such payment shall be without prejudice to plaintiff's right to appeal from the appraisers' award. Upon such payment being made the title, easement or interest appropriated in the land condemned shall thereupon immediately vest in the plaintiff, and it shall be entitled to the immediate possession of the land to the extent necessary for the purpose for which taken and consistent with the title, easement or interest condemned. The plaintiff shall be entitled to all the remedies provided by law for the securing of such possession.

"(b ) Abandonment. If the plaintiff does not make the payment prescribed in subsection (a) hereof for any of the tracts described in the petition, within thirty (30) days, from the time the appraisers' report is filed, the condemnation is abandoned as to those tracts, and judgment for costs, including the appraisers' fees together with judgment in favor of the defendant for his reasonable expenses incurred in defense of the action, shall be entered against the plaintiff. After such payment is made by the plaintiff to the clerk of the court, as provided in subsection (a ) hereof, the proceedings as to those tracts for which payment has been made can only be abandoned by the mutual consent of the plaintiff and the parties interested in the award." K.S.A. 26-507. Emphasis supplied.

The appellant construes the statute liberally and asserts that the statute was enacted to prevent harassment procedures by condemning authorities. In the past, appellant states, certain instrumentalities were guilty of bringing successive actions to condemn parcels of land with no intention of prosecuting to a conclusion, and thereby harassed the property owner into submission and acceptance of whatever terms were offered.

"The first rule of statutory construction is to ascertain, if possible, the intent of the legislature." Nordstrom v. City of Topeka, 228 Kan. 336, 340, 613 P.2d 1371 (1980).

If the intent of the legislature was to prevent harassment by use of successive actions then the statute only applies to cases where the city has abandoned the condemnation and may file successive actions. By providing a judgment against the city for a defendant's costs, the effect would be to discourage the city from initiating successive court actions. This seems to be a fair reading of the statute because b is entitled "Abandonment" and the word "abandoned" is used twice within that section.

Appellants assume the city "abandoned" the condemnation within the meaning of the statute. However, in this case the city did not abandon the condemnation project. It purchased the property, and by doing so before the appraisers were appointed, it probably saved money. There seems little reason to saddle the city with lessees' costs merely because the city settled the controversy giving rise to the condemnation.

The Supreme Court has dealt with dismissals of leasehold interests in eminent domain proceedings. In State Highway Commission v. Bullard, 208 Kan. 558, 493 P.2d 196 (1972), the issue was whether the owner of a leasehold interest had standing to intervene in a proceeding after such tract had been dismissed from the proceeding. The question was answered in the negative. However, the issue whether the leaseholder could be awarded his costs after dismissal was not raised by the parties or addressed by the court.

The following cases support the "no abandonment" theory.

In Whittier Union High Sch. Dist. v. Beck, 45 Cal.App.2d 736, 114 P.2d 731 (1941), the court stated that the fact that the school district had procured a dismissal of the condemnation proceeding after it had acquired the property by purchase did not constitute an "abandonment" within the meaning of a statute providing for an award of attorney fees and necessary expenses upon abandonment by plaintiff. The California court said:

"The sole question properly presented by this appeal, therefore, is whether the dismissal of the action by the plaintiff after the purchase of the property constituted an abandonment of the proceedings within the meaning and application of section 1255a. Obviously, there was no such abandonment. The property in question had been acquired by purchase, plaintiff had achieved the purpose of the suit, the matter had been settled out of court and there was no further necessity of a judgment of condemnation. Plaintiff having acquired the property which formed the subject of the proceeding in eminent domain...