Collins v. City of Wichita, Kansas
| Decision Date | 07 November 1955 |
| Docket Number | No. 5140.,5140. |
| Citation | 225 F.2d 132 |
| Parties | L. C. COLLINS and Lucille Collins, his wife; Earl Schneider and Mildred Schneider, his wife; Vollie L. Woodward and Lela E. Woodward, his wife; Leo R. Marlatt; and Lewis C. Marlatt, Appellants, v. The CITY OF WICHITA, KANSAS, a municipal corporation, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Kenneth G. Speir, Newton, Kan. (Vernon A. Stroberg and Herbert H. Sizemore, Newton, Kan., were with him on the brief), for appellants.
Robert B. Morton, Wichita, Kan. (Fred W. Aley and Lawrence E. Curfman, Wichita, Kan., were with him on the brief), for appellee.
Before PHILLIPS, Chief Judge, and HUXMAN and PICKETT, Circuit Judges.
Certiorari Denied November 7, 1955. See 76 S.Ct. 140.
This was a suit commenced in the United States District Court for the District of Kansas for a declaratory judgment declaring null and void a condemnation proceeding by the City of Wichita, Kansas, seeking to condemn a right of way for a water line across appellants' land to bring water to the city limits. The ground on which Federal jurisdiction was invoked was that the condemnation proceedings and the statutes under which they were brought violated the due process clause of the Fourteenth Amendment to the United States Constitution.1 A motion was filed by the city to dismiss. The parties agreed that it should be treated as a motion for a summary judgment. After a hearing, the trial court sustained the motion and entered a summary judgment dismissing appellants' cause of action.
The record shows that on September 7, 1954, the City of Wichita began a series of steps necessary under Kansas Statutes2 to condemn this right of way by enacting Ordinance No. 20-386 describing the lands to be taken. This ordinance was published the following evening in the Wichita Eagle, the official city paper and a daily newspaper of general circulation throughout Sedgwick County, of which county Wichita is the county seat. The following day the condemnation action was begun by the city in the District Court of Sedgwick County, Kansas, to take, among other parcels, the lands of the plaintiffs herein involved. As required by statute, the district judge appointed appraisers who caused to be published in the Wichita Eagle on September 16, 1954, a notice addressed to plaintiffs that their lands were being condemned. The lands to be taken were described therein as were the reason and the extent of taking, as follows: "for the purpose of laying, installing, maintaining and operating pipes, lines, mains, electric transmission control and communication circuits and other appurtenances necessary for the construction, extension and improvement of the water supply and water works system of the City of Wichita, Kansas, for the purpose of supplying said city and its environs and inhabitants thereof with water." The notice informed plaintiffs that appraisers were to meet at the City Building in Wichita on September 27, 1954, at 10:30 A.M. to assess the damages to be awarded.
The report of the commissioners was filed on September 28, 1954, and thereafter confirmed by the district court. Title and the right of exclusive possession to the easements and rights of way condemned were vested in the city and the damages approved by the appraisers were made available to landowners as provided by state law.
While numerous assignments of error are urged for reversal, they fall generally into three classes and they will be so treated. They are: (1) the condemnation statutes and notice thereunder given to appellants were unconstitutional and void for lack of due process; (2) the condemnation ordinance was illegal because the pipeline right of way condemned was in reality for the private benefit of the Wichita Water Company rather than for an authorized public purpose; and (3) the petition in condemnation was so lacking in definiteness and certainty that the condemnation proceedings were, therefore, rendered void.
The most serious question in the case relates to the adequacy of the notice. One whose property is sought to be taken from him under the power of eminent domain is entitled to notice and to a hearing with respect to the value of the property sought to be so taken. Failure to give adequate notice would render such a proceeding void and constitute lack of due process under the Fourteenth Amendment.3 Appellants complain that they were not personally served with notice of the meeting of the board of appraisers for the purpose of fixing damages. We are, however, of the view that they were not entitled to such notice and that adequate publication notice would be sufficient. While there is some authority to the contrary, the great weight of authority supports the proposition that a condemnation proceeding is a proceeding in rem and that constructive notice meets the requirement of due process.4
But appellants contend that in any event the statute under which this notice was given and the notice actually given thereunder are both void. G.S. 1949, § 26-202, relating to the condemnation of property within a city, provides that at least ten days' notice of the time and place where damages will be assessed shall be given in writing or "by one publication in the official city paper." It is clear from the record that the notice was given pursuant to this statute. The order of the district court directed that notice be given in the official city paper. Appellants argue that notice in the official city paper of condemnation with respect to the property lying outside the city is no notice. They argue that under such a law one who owns property in a number of counties lying outside the city limits would have no notice unless he subscribed to all of the official city papers in those counties. This argument is not without substance, and were Section 26-202 the only provision dealing with notice in condemnation of property outside a city a grave question might arise as to the sufficiency of such notice or the validity of such statute.
The provision which gives a city power to condemn property either within or without the city limits is G.S.1949, § 13-1209. Section 26-202 merely sets out the procedure to be followed in condemning property within the city limits. With respect to the procedure to be followed for condemning property outside the city limits we look to Section 26-208 which provides that, "Where the governing body of any city, or any other board or commission of such city, is authorized to condemn land outside the city limits for the use of such city * * *, the same proceedings shall be had as though such land were located within such city, so far as the procedure relating to cities shall be applicable."5
So far as we have been able to ascertain Section 26-208 has never been considered by the Supreme Court of Kansas with respect to what form of notice must be given thereunder. It seems clear to us that generally it requires city condemnation proceedings with respect to property outside the city to be carried on under the general provisions of the law relating to condemnation of property within the city. Thus, for the necessity of a city resolution finding a public need, the passage and publication of an ordinance, and the application to the district court for the appointment of appraisers, we must look to the statute relating to the condemnation of property within the city. In fact, only there can we find the procedural steps to be taken. But it also seems clear to us that the statute recognizes that in some respects the procedure relating to condemnations within the city may not be appropriate to condemnation of property outside the city. If that were not so, why was the...
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Pierce v. Cook & Co., Inc.
...in the Collins litigation. There, the plaintiffs attacked the constitutionality of a Kansas statute and lost. Collins v. City of Wichita, Kansas, 10 Cir., 225 F.2d 132, cert. denied 350 U.S. 886, 76 S.Ct. 140, 100 L.Ed. 781. A year later in an unrelated case the Supreme Court held the Kansa......
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Walker v. City of Hutchinson Kansas
...with the court below and with the opinion of the Court of Appeals for the Tenth Circuit rendered in the comparable case of Collins v. City of Wichita, 225 F.2d 132, which came to our attention at the last term of Court and in which certiorari was denied on November 7, 1955, 350 U.S. 886, 76......
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United States v. Chatham
...U.S. 293, 73 S.Ct. 37, 97 L.Ed. 333; Walker v. City of Hutchinson, 352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 178. 4 See Collins v. City of Wichita, Kansas, 10 Cir., 225 F.2d 132; Chattooga County v. Scott, 215 Ga. 68, 108 S.E.2d 5 Cf. United States v. Ivie, N.D.Ga., 163 F.Supp. 138. 6 If the ri......
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Schwochert v. American Family Mut. Ins. Co., 90-2737
...in the Collins litigation. There, the plaintiffs attacked the constitutionality of a Kansas statute and lost. Collins v. City of Wichita, Kansas, 10 Cir., [ (1955) ] 225 F.2d 132, cert. denied, 350 U.S. 886 [76 S.Ct. 140, 100 L.Ed. 781 (1955) ].... A year later in an unrelated case the Supr......