Condemnation of Land for Controlled Access Highway Purposes, Matter of

• Decision Date: 10 April 1976
• Docket Number: No. 47873,47873
• Citation: 548 P.2d 756,219 Kan. 320
• Parties: In the Matter of the CONDEMNATION OF LAND FOR CONTROLLED ACCESS HIGHWAY PURPOSES. Appeal of William R. ROSTINE et al., Appellants and Cross-Appellees, v. CITY OF HUTCHINSON, Kansas, Appellee and Cross-Appellant.
• Court: Kansas Supreme Court

Page 756

548 P.2d 756

219 Kan. 320

In the Matter of the CONDEMNATION OF LAND FOR CONTROLLED

ACCESS HIGHWAY PURPOSES.

Appeal of William R. ROSTINE et al., Appellants and Cross-Appellees, v. CITY OF HUTCHINSON, Kansas, Appellee and Cross-Appellant.

No. 47873.

Supreme Court of Kansas.

April 10, 1976.

Syllabus by the Court

1. In every partial taking case there are only two issues-the value of the entire property or interest immediately before the taking, and the value of that portion of the tract or interest remaining immediately after the taking.

2. The 'unit rule' method of valuation, as statutorily approved by K.S.A. 26-513(d), provides the total value of real estate is first determined without placing a value on each of the separate contributing items. Consideration of the value of improvements is limited to the extent they enhance the value of the land taken.

3. The responsibility of defining the extent of compensable rights is in the courts and if the testimony of an expert witness is based on noncompensable items or the credibility of the testimony is otherwise destroyed, the testimony should be stricken.

4. Although the failure to consider the contributory value of compensable items is erroneous, it is not always prejudicial; and, if not, only the weight of the testimony is affected.

5. The testimony of an expert valuation witness based on an appraisal prior to the date of taking is admissible where the witness testified the value of the property remained unchanged.

6. The purchase price of property which is subject to condemnation and is transferred by deed is not admissible in evidence.

7. In eminent domain proceedings, cross-examination of expert witnesses should be permitted to the fullest extent so the jury may determine the probative value of their testimony.

Paul L. Aylward, Ellsworth, and Frank S. Hodge, Hutchinson, argued the cause and Robert E. Laubengayer, Ellsworth, was with them on the brief for appellants and cross-appellees.

Robert J. Gilliland and John F. Hayes, Gilliland, Hayes & Goering, Hutchinson, argued the cause, and Charles K. Hyter, City Atty., was with them on the brief for appellee and cross-appellant.

OWSLEY, Justice:

This is a partial taking condemnation case in which error is predicated on the admission and exclusion of evidence offered to show the before and after value of the condemned property.

On May 9, 1972, the City of Hutchinson, appellee herein, filed a petition in the district court of Reno County, pursuant to its power of eminent domain (K.S.A. 26-201), seeking to condemn a certain described tract of land owned by William R. Rostine, Boyd L. Rostine, and The Hutchinson Concrete Company, appellants herein. The petition alleged the taking of the private property was necessary for the purpose of acquiring a right of way for the construction of a grade separation facility to carry a controlled access highway over a railroad right of way and other streets in the City of Hutchinson with ramps and roadways incident thereto. The description in the petition specifically provided that the '(l)and abutting the above described right of way easement shall have no right or easement of access thereto.'

Appellant's tract of land consisted of a total of 15.951 acres prior to the taking. Under its statutory power of eminent domain the City of Hutchinson condemned a 4.292 acre section cutting diagonally through the middle of the tract, leaving 4.4 acres with improvements on the east side and 7.259 acres of vacant land on the west side. Appellants operated a concrete products manufacturing business on the tract of land. The plant located on the property consisted of a large building containing manufacturing equipment, a block machine, automation machines, mixers, and boilers; a metal storage building; two storage silos; and a doubt T form. None of the improvements were located on the section of land being condemned except the double T form. The double T form was a steel form set up as two 'T's,' four feet wide and ninety feet long. It was used to precast concrete pieces of different lengths, including feed bunks and fences. It was connected to the rest of the system with a steam line from the boiler room and it was bolted down on a concrete foundation.

Pursuant to the petition of condemnation filed by the city, the trial court appointed three appraisers to determine the damage resulting from the taking. On June 21, 1972, the appraisers filed a report with the court wherein they fixed the value of the property before the taking at $133,683 and the value after the taking at $116,181, resulting in an award of $17,502.

Appellants filed an appeal to the district court from the award of the court appointed appraisers. A pretrial conference was held on October 10, 1973, at which time the parties agreed the date of taking was June 27, 1972. The pretrial order stated that the question of whether the double T form was to be considered part of the real estate would be briefed by the parties. On June 6, 1974, the City of Hutchinson filed a pretrial motion requesting the court to allow it to amend its original petition to state that the appellants would have the right of access between the two separated tracts as provided by the revised plans of the State Highway Commission. In support of its motion the City alleged the court appointed appraisers and value witnesses for the condemnor made their appraisals in contemplation of the right of ingress and egress over the condemned tract. The City's motion to amend its petition was subsequently denied by the court.

Trial before a jury was commenced on November 5, 1974. The landowners' valuation witnesses, John C. Oswald and D. J. Van Sickle, appraised the damage at $86,500 and $83,435, respectively. In contrast, the city's witnesses, E. E. Frizell and W. W. Ferguson, appraised the damage at $17,502 and $10,453, respectively. The jury, after receiving instructions from the court, returned an award to the landowners in the amount of $23,250. The landowners appeal from the award claiming it was based on improper evidence. A cross-appeal from the trial court's denial of its motion to amend the petition was filed by the city, but the cross-appeal has since been abandoned.

The landowners' principal contention on appeal is that the trial court erred in failing to strike the testimony of the city's valuation witnesses, Ferguson and Frizell. They attack their testimony on the following grounds:

(1) Each of them erroneously used the summation method of appraisal.

(2) Each of them erroneously failed to include the following improvements in their appraisal:

(a) machinery and equipment;

(b) raulway spur and silo;

(c) double T form.

(3) Witness Ferguson's appraisal was based on a date different from the date of taking.

(4) Each of them improperly reflected in their appaisal the right to use the condemned right of way for access between the severed tracts.

Since this case involves a partial taking the measure of damages is controlled by the statutory directives of K.S.A. 26-513(c) which provides:

'(c) Partial taking. If only a part of a tract of land or interest is taken, the compensation and measure of damages are the difference between the value of the entire property or interest immediately before the taking, and the value of that portion of the tract or interest remaining immediately after the taking.'

In every partial taking case there are only two issues-the value of the whole before the taking and the value of the remaining property after the taking. (City of Wichita v. May's Company Inc., 212 Kan. 153, 510 P.2d 184.) To assist the court or jury in ascertaining the amount of damages the legislature has designated fifteen factors to be considered if shown to exist. The statute, however, directs that the factors are not to be considered as separate items of damage, but are only to be considered as they affect the total compensation. (K.S.A. 26-513(d).) This latter requirement is a codification of the rule of law of this state which prohibits the use of the 'summation method' of valuation.

The 'summation method' denotes a process of appraisal whereby each of several items that contribute to the value of real estate are valued separately and the total represents the market value thereof. Use of this method of appraisal has generally been rejected since it fails to relate the separate value of the improvements to the total market value of the property. (1 A.L.R.2d Anno., Eminent Domain-Valuation as Unit, p. 878.) In contrast, the 'unit rule,' which is the generally accepted method of valuation, denotes a process of appraisal whereby the total value of real estate is first determined without placing a value on each of the separate contributing items. Consideration of the value of buildings and improvements is limited to the extent they enhance the value of the land taken. The same rule applies to machinery or other articles of personal property which have become affixed to the real estate. (4 Nichols on Eminent Domain, (3d Ed.), § 13.11; 2 Orgel on Valuation Under Eminent Domain, § 189, p. 4.) In Hoy v. Kansas Turnpike Authority, 184 Kan. 70, 334 P.2d 315, we emphasized the requirement in this state that improvements be considered only to the extent they enhance the value of the whole property and not as separate items:

'Improvements, such as here involved, located upon land which is condemned, are not to be valued separately but are a part of the real estate and must be considered in determining the value of the land taken . . ..' (p. 74, 334 P.2d p. 320.)

(See, also, Saathoff v. State Highway Comm., 146 Kan. 465, 72 P.2d 74; Reiter v. State Highway Commission, 177 Kan. 683, 281 P.2d 1080.) It is the landowners' contention that the city's witnesses improperly used the summation method to arrive at their appraisal figures.

Our review of the record discloses Frizell testified on direct examination as to the total market value of the...