City of Wichita v. Kansas Gas & Elec. Co.

• Decision Date: 24 January 1970
• Docket Number: No. 45526,45526
• Citation: 204 Kan. 546,464 P.2d 196
• Parties: CITY OF THE WICHITA, Appellee, v. KANSAS GAS AND ELECTRIC COMPANY, Appellant.
• Court: Kansas Supreme Court

Page 196

464 P.2d 196

204 Kan. 546

CITY OF THE WICHITA, Appellee, v. KANSAS GAS AND ELECTRIC COMPANY, Appellant.

No. 45526.

Supreme Court of Kansas.

Jan. 24, 1970.

Syllabus by the Court

1. When a public utility, operating under a franchise granted by the governing body of a city, locates its facilities over and along or under the streets and public grounds of such city it does so with the legal understanding that its interest in the public way is subordinate to the superior right of the city to require relocation of the facilities at the user's expense, when such relocation is necessitated by reason of a change or improvement by the municipal authorities in the public grounds involved.

2. A right-of-way acquired by a city for use as a drainage canal is a public place within the meaning of those terms as used in a franchise granted to a public utility.

3. Designation by a city governing body of a particular location on a public place for the construction of a power transmission line does not establish a property right in a public utility which requires negotiated compensation or condemnation when relocation of such line is necessitated by public improvements.

4. When a public utility is granted a franchise by a city governing body the provisions of G.S.1949, 12-2001 (now K.S.A. 12-2001), prescribe the only method by which the city may grant such utility the right to use the public streets in carrying on its private business. (Following Kansas Power & Light Co. v. City of Great Bend, 172 Kan. 126, 238 P.2d 544.)

5. A trial court cannot make findings of fact different from those agreed to by the parties.

6. In an action for a declaratory judgment, to determine whether a public utility, operating under a municipal franchise, is legally entitled to reimbursement from the city when the construction of a federal aid highway necessitates the relocation of a power transmission line on a right-of-way, used by the city for drainage canal purposes, it is held: The trial court did not make findings of fact in conflict with the stipulation. The public utility did not acquire an irrevocable property right, which required negotiated compensation or condemnation, by reason of any action of the city governing body in the approval of the public utility's request to build the transmission line or in the designation of a location therefor.

Ralph Foster, Wichita, argued the cause, and Stanley Garrity, Wichita, was with him on the briefs, for appellant.

William C. Farmer, Wichita, argued the cause, and John Dekker, Wichita, was with him on the briefs, for appellee.

KAUL, Justice:

This is an action brought by plaintiff-appellee (City of Wichita) for a declaratory judgment to judicially determine whether defendant-appellant (Kansas Gas and Electric Company) is legally entitled to reimbursement from the city for the expense of relocating a power transmission line from its present location on the right-of-way of the Wichita Drainage Canal to another location on the same right-of-way. The relocation of the power transmission line is made necessary by the proposed use of the right-of-way for highway purposes in the construction of Interstate Highway 35-W.

Facts were stipulated by the parties and the action was submitted to the trial court for determination as a matter of law. Judgment was entered for the city and defendant (Kansas Gas and Electric Company) has appealed.

In 1925, the appellee acquired by condemnation proceedings a canal right-of-way for the purpose of 'widening and otherwise improving the Wichita Drainage Canal.' In 1926, the appellee, by negotiation, acquired deeds to the tracts of land located in the canal right-of-way, confirmatory of the condemnation proceedings. Since 1925 the appellee has used the right-of-way for drainage canal purposes. In addition to drainage canal usage, the public has had free access to the canal right-of-way area and has used various portions of it for pedestrian and vehicular traffic, and for recreational and other public uses.

Appellant is an electric public utility operating in Sedgwick County and other counties of Kansas pursuant to authority of the State Corporation Commission of Kansas.

In 1947, the appellee, by Ordinance No. 14-844, granted a franchise to appellant for the furnishing of electricity to the city and its electric consumers and 'to construct maintain and operate in present and future streets, alleys and public places in the City of Wichita, Kansas, electric light and power lines.' (Emphasis supplied.)

Section 3 of the franchise ordinance provided for the manner of constructing power lines and transmission facilities. It provided in part:

'* * * Whenever practicable, poles shall be placed in the alleys; or, when in the street, shall be located, whenever practicable, on the lot lines and just inside the curb line or as near the side of the curb line as same can properly be placed; and all work of construction of lines, poles, wires, cables, pipes and conduits shall be done under the direction and supervision of the governing body of the City or its duly authorized representatives, provided the governing body of the City may, in its discretion, vary any of the above provisions and requirements whenever in the judgment of such body, public necessity may require; and provided further, that in making any and all excavations and work of improvement and in exercising any rights and privileges under this franchise same shall be done in conformity to the ordinances of the City of Wichita, passed by the said City in the reasonable exercise of its police power.'

Section 4 of the franchise ordinance provided that appellant would indemnify and hold the appellee harmless from any and all claims, costs, damages, expense or liability which may be occasioned by the occupancy of the streets, alleys and public grounds in the city by the properties and works of appellant.

The franchise was granted until July 15, 1967, and on April 7, 1964, a subsequent Ordinance No. 27-670 was passed and approved granting a franchise until March 1, 1984. The parties stipulated that the second franchise is identical with the first (No. 14-844) in all respects pertinent to this litigation.

After 1947 appellant furnished electricity to the city and consumers in the city and has used public property including streets and alleys for the location of its transmission lines pursuant to the franchise.

On October 3, 1950, the appellee, acting through its governing body, approved the location of the transmission line in question. The journal of the city commission proceedings reflects the following:

'Request from the Kansas Gas and Electric Company for approval of a proposed route for a 66 kv line to come into Wichita from the new Murray Gill plant to be built south of Wichita, presented. It is proposed that this new line come along the canal at some point south of Harry Street and then north along the canal terminating at Central. City Manager approved the request providing the line is built on the east side of the canal. Jump moved that the request be granted as recommended by the City Manager. Motion carried.'

As to the installation of the transmission line the parties stipulated:

'7. Pursuant to said resolution set out in Paragraph 6 above, KG&E did construct and install poles and electric lines along and over the Canal right-of-way, said installation being completed and in service on November 12, 1951, at a cost of $93,622. A map showing the installation route and present location thereof is attached hereto marked Exhibit 'F' and made a part hereof. Said transmission line and all structures thereof are located wholly upon the property included in the 1925 condemnation action heretofore mentioned.' (Emphasis supplied.)

For the purpose of the construction and maintenance of a connecting link of Interstate 35-W, and in contemplation of the provisions of the Federal Aid Highway Act of 1956 and 1963, and pursuant to K.S.A. 68-401 et seq., the appellee and the State Highway Commission entered into an agreement on December 9, 1958, and a supplemental agreement on December 23, 1963. Under the terms of the agreement, the location of the Interstate 35-W right- of-way was fixed and the appellee agreed to obtain, in advance of construction, all of the right-of-way, construction easements and access rights called for by the project; and that it would move or caused to be moved or adjusted 'all existing fences, structures, pole lines, pipe lines, meters, manholes, other utilities and encroachments, publicly or privately owned, which may be necessary to the construction of the project in accordance with approved plans.'

In 1963, appellee instituted condemnation proceedings to acquire sufficient rights in portions of the canal right-of-way to construct the highway thereon. The appellant was not made a party to these proceedings.

The construction of the highway required relocation of the appellant's transmission line to another portion of the canal right-of-way. Appellee requested appellant to relocate the transmission line in question and appellant refused to relocate at its own expense; thus giving rise to this controversy.

In general, appellant supports its position by proposing two theories. First, it claims that the action of the appellee in 1950, in response to appellant's request for approval of a proposed route for its transmission line along the canal, amounted to a resolution from which appellant acquired rights superior and distinct from the ordinary construction easement rights, stemming from its 1947 franchise. Second, appellant claims the canal right-of-way does not fall within the concept of 'alleys, streets and public properties,' specified as available for the construction of utility facilities in the franchise. Thus, appellant contends it secured by the 'resolution' an interest in the right-of-way which required negotiated compensation or condemnation.

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