Clay Tp., Reno County v. Pebley
| Decision Date | 10 April 1971 |
| Docket Number | No. 45924,45924 |
| Citation | 207 Kan. 59,483 P.2d 1101 |
| Parties | CLAY TOWNSHIP, RENO COUNTY, Kansas, Appellant, v. Warren D. PEBLEY and Phyllis Jean Pebley, (Interpleaders) and Charles Heidebrecht, Sheriff of Reno County, Kansas, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
Pursuant to K.S.A. 68-102 a petition was filed with the board of county commissioners to lay out and establish a township road. The members of the board appointed themselves as viewers to assess damages to the landowners. Certain landowners owners appealed to the district court from the award made in their behalf. Upon this appeal judgment was entered against the township in accord with a jury verdict determining the damages. When the township board failed to pay the judgment execution upon it was issued against the township's property. The township thereupon sought to enjoin the sheriff from taking action upon the execution. In an appeal from an order denying injunctive relief, the record is examined and it is held: (1) A township, and not the county, is liable for the damages allowable to a landowner upon the opening of a township road; (2) the landowners complied with the provisions of the applicable statute in taking their appeal and the township board was aware of the appeal proceedings so that entry of judgment against it did not constitute deprivation of property without due process of law; and (3) the county was not estopped to deny liability upon the judgment because the county attorney had assumed defense of the appeal.
Frank S. Hodge, Hutchinson, argued the cause, and H. Newlin Reynolds and Dennis O. Smith, Hutchinson, were with him on the brief for appellant.
Kerry J. Granger, Asst. County Atty., argued the cause, and Raymond F. Berkley, County Atty., was with him on the brief for appellee Charles Heidebrecht.
Kenneth F. Ehling, Hutchinson, argued the cause, and Clyde A. Raleigh, Hutchinson, was with him on the brief for appellees Warren D. Pebley and Phyllis Jean Pebley.
HARMAN, Commissioner.
Here a township seeks to restrain a sheriff from levying an execution issued to satisfy a judgment rendered against the township on an appeal by landowners from an award of damages for opening a township road. The principal question now is, which is liable for the award-the township or the county?
Reno county has not adopted a county unit road system.
In August, 1967, pursuant to K.S.A. 68-102, et seq., a petition signed by twelve householders was filed with the Reno county board of commissioners to lay out and open a road in Clay township one mile in length. (For several years prior to this time the Clay township board had been arguing about the proposed road, trying to get the county commissioners to go ahead and open the road.) The members of the county board appointed themselves as viewers to view the proposed road and assess damages. Statutory notice to the public and the landowners involved was given. The county board viewed the property and by resolution dated November 1, 1967, assessed damages for land taken in the sum of $178.36 to Warren D. Pebley and his wife, Phyllis Jean Pebley. The board also assessed damages in a lesser amount to another landowner. At some time thereafter a Mr. Thode in the Reno county engineer's office delivered a letter to the trustee of Clay township stating the township should pay the awards allowed.
November 9, 1967, the Pebleys filed with the Reno county clerk their notice of appeal from the board's award, along with an appeal bond and an application claiming $14,000 in damages. December 1, 1967, the county clerk filed all papers in the proceeding with the clerk of the district court of Reno county.
December 9, 1968, the township board mailed to Mr. Pebley its warrant for $178.36. At the same time it paid to the other landowner the amount awarded by the viewers. By letter dated January 18, 1969, the Pebleys through their attorneys returned the warrant to the township board. The letter stated, 'As you know, these folks have appealed the award of damages'.
On Feburary 4, 1969, jury trial on the appeal was concluded in the district court of Reno county and a verdict was returned awarding the Pebleys the sum of $1,750 as damages to their property. Judgment against Clay township was entered upon this verdict. The Reno county attorney defended the action.
On July 1, 1969, the judgment remaining unpaid, the Pebleys caused execution on it to be issued against the property of Clay township. August 15, 1969, the township commenced this proceeding by filing its petition wherein it sought to have the Reno county sheriff perpetually enjoined from taking any action on the execution. The Pebleys were permitted to interplead in this action. Issues were joined, hearing was had and on September 23, 1969, the trial court ruled Clay township was liable for the damages awarded by the jury and it denied injunctive relief. This appeal ensued.
Appellant Clay township's first contention is that the county, not the township, is by statute liable for the payment of damages incurred in opening the road.
The road in admittedly a township road.
We briefly review certain statutes applicable to township roads, all found in K.S.A., Chapter 68.
Section 102 provides that applications for laying out roads shall be by petition to the board of county commissioners, certain requisites for an application being stated.
Section 104 provides that upon finding such a petition to be proper in form, with proper bond filed, the commissioners shall appoint viewers, who may be the county commissioners, who, after notice has been given, shall view the property and give all parties a hearing. 105 prescribes the form of notice.
Section 106 gives further direction to the viewers in carrying out their duties and provides they shall determine the amount of damages sustained by any person through whose premises the road is to be established. Upon approval by the commissioners and recording of the proceedings an order is to be issued by the county surveyor to the township trustee directing opening of the road for public travel.
Section 107 provides that any person feeling aggrieved by the award of damages may appeal to the district court upon the same terms, in the same manner and with like effect as in appeals from judgments of justices of the peace in civil cases. Provision is also made for the creation of special benefit districts in particular situations with partial payment of the damages under a prescribed formula to be made by assessment of the land specially benefited by establishment of the road.
Section 114 provides generally for making changes in roads for the purpose of improving them in the interest of safety, including their laying out and relocation. Necessary laying out or relocation is to be by order of the board of county commissioners. The board is to determine applications for damages caused thereby, which amounts are to be paid from the general or road fund of a county in case of county roads and from the township road fund on township roads.
Section 115 provides that the township trustee has the duty to open all township roads and keep them in repair and free of obstruction....
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