Dick v. Drainage Dist. No. 2 of Harvey, Reno and McPherson Counties

• Decision Date: 21 January 1961
• Docket Number: Nos. 41947,41952,s. 41947
• Citation: 358 P.2d 744,187 Kan. 520
• Parties: J. M. DICK and Lena Dick, Appellees, v. DRAINAGE DISTRICT NO. 2 OF HARVEY, RENO AND McPHERSON COUNTIES, Kansas, Appellant. Abraham SIEMENS, Appellee, v. DRAINAGE DISTRICT NO. 2 OF HARVEY, RENO AND McPHERSON COUNTIES, Kansas, Appellant. Arnold A. RATZLAFF, Appellee, v. DRAINAGE DISTRICT NO. 2 OF HARVEY, RENO AND McPHERSON COUNTIES, Kansas, Appellant. J. S. FRIESEN, Appellee, v. DRAINAGE DISTRICT NO. 2 OF HARVEY, RENO AND McPHERSON COUNTIES, Kansas, Appellant. D. A. FRANZ and Marjorie Franz, Appellees, v. DRAINAGE DISTRICT NO. 2 OF HARVEY, RENO AND McPHERSON COUNTIES, Kansas, Appellant. to 41955.
• Court: Kansas Supreme Court

Page 744

358 P.2d 744

187 Kan. 520

J. M. DICK and Lena Dick, Appellees, v. DRAINAGE DISTRICT NO. 2 OF HARVEY, RENO AND McPHERSON

COUNTIES, Kansas, Appellant.

Abraham SIEMENS, Appellee, v. DRAINAGE DISTRICT NO. 2 OF HARVEY, RENO AND McPHERSON

COUNTIES, Kansas, Appellant.

Arnold A. RATZLAFF, Appellee, v. DRAINAGE DISTRICT NO. 2 OF HARVEY, RENO AND McPHERSON

COUNTIES, Kansas, Appellant.

J. S. FRIESEN, Appellee, v. DRAINAGE DISTRICT NO. 2 OF HARVEY, RENO AND McPHERSON

COUNTIES, Kansas, Appellant.

D. A. FRANZ and Marjorie Franz, Appellees, v. DRAINAGE DISTRICT NO. 2 OF HARVEY, RENO AND McPHERSON

COUNTIES, Kansas, Appellant.

Nos. 41947, 41952 to 41955.

Supreme Court of Kansas.

Jan. 21, 1961.

Rehearing Denied March 8, 1961.

Syllabus by the Court

1. Where a right of way on landowners' property is appropriated to the use of a drainage district under void condemnation proceedings, upon the facts and circumstances related in the opinion, the district court in which land is situated has jurisdiction to hear and determine an independent common law action for damages brought by the landowners.

2. Notwithstanding that an order overruling a motion to dismiss an action is ordinarily not an appealable order, under the facts, conditions and circumstances set forth in the opinion an order overruling a motion to dismiss the action for want of jurisdiction has been considered equivalent to an order overruling a demurrer based upon the same ground.

Evart Mills, McPherson, argued the cause, and George A. Robb, Newton, and J. R. Rhoades and George R. Lehmberg, McPherson, were with him on the brief for appellant.

Vernon A. Stroberg, Newton, argued the cause, and Kenneth G. Speir, Herbert H. Sizemore and Richard F. Hrdlicka, Newton, were with him on the brief for appellees.

SCHROEDER, Justice.

This is an action by landowners against a drainage district for damages resulting from the appropriation of a right of way on the landowners' property by the drainage district for its use.

The question of substantive law presented is whether the district court of the county in which the land is situated has jurisdiction to hear and determine an independent action for damages where condemnation proceedings instituted by the condemner are void.

This case is one of five separate appeals, the other four cases being numbered 41,952, 41,953, 41,954 and 41,955. Pursuant to a stipulation of the parties that the decision in one appeal shall govern the decision in each of the other appeals they have been consolidated. Only the appeal in 41,947 has been abstracted and briefed and our consideration of these cases is confined to this appeal.

The basic facts giving rise to the appeal in the instant action, aside from procedural complications which are immaterial to relate, may be briefly stated as follows: Early in January of 1953 Drainage District No. 2 of Harvey, Reno and McPherson Counties, Kansas (defendant-appellant, hereafter referred to as the drainage district), instituted condemnation proceedings to acquire a right of way for drainage improvements to be constructed and maintained upon the land of J. M. Dick and Lena Dick (plaintiffs-appellees, hereafter referred to as the landowners). Pursuant to such proceedings appraisers were appointed by the district court of Harvey County, Kansas, on the 6th day of January, 1953; their report was filed determining the compensation to be made to the landowners for 'the real estate, easements and franchises taken;' and the amount of compensation found to be due the landowners was paid into the county treasurer of Harvey County on the 3rd day of April, 1953.

The landowners took no appeal from the condemnation award.

The drainage district entered upon the property of the landowners described in the condemnation proceedings and constructed the drainage improvements.

The landowners first commenced an action to enjoin the drainage district from entering upon their land and constructing the drainage improvements, alleging that the condemnation proceedings were void. The district court of Harvey County overruled a demurrer to this petition from which order an appeal was perfected to the Supreme Court. At the time of the hearing in the Supreme Court the improvements had been constructed and it was held, in an opinion filed March 6, 1954, that the landowners were no longer entitled to injunctive relief, and the issues involved in the case upon the particular pleading then before the court were moot. The cause was remanded with instructions to dismiss the action. Dick v. Drainage District No. 2, 175 Kan. 869, 267 P.2d 494.

On the 4th day of March, 1955, the instant action was commenced. The landowners alleged, as they had previously done in the injunction suit, that the condemnation proceedings were void, stating in detail the particulars upon which they relied, and sought damages for the appropriation of their property. The condemnation proceedings, complete with certificates showing payment to the treasurer of Harvey County, were incorporated and made a part of the landowners' third amended petition.

Counsel for the drainage district on April 12, 1957, in arguing a motion to strike certain allegations from the landowners' third amended petition stated:

'* * * Now, the fact that the condemnation proceedings were valid or invalid makes no difference in this case and is immaterial and irrelevant to this action. * * * The only thing left in this case, and in these cases, is how much compensation these plaintiffs are entitled to.' (Emphasis added.)

The trial court in reliance upon the foregoing admissions sustained the motion to strike. The effect of this ruling was to eliminate the invalidity of the condemnation proceedings as an issue in the case.

The answer of the drainage district admitted the condemnation proceedings and placed in issue the value of the land taken. It alleged the sum awarded the landowners by the appraisers and placed in the office of the county treasurer of Harvey County was just, fair and reasonable compensation to the landowners. Other allegations of a defensive nature concerning the extent of damages are immaterial to this appeal.

The landowners' reply joined issues; admitted that the drainage district paid the compensation awarded by the appraisers to the county treasurer of Harvey County; and that the funds remain on deposit with the county treasurer.

At the pre-trial conference on the 30th day of December, 1958, after all pleadings had been filed, counsel for the drainage district reaffirmed that 'the sole remaining issue in each case was the amount each plaintiff was entitled to recover.' As a result thereof the trial court eliminated the defense of the statute of limitations by striking portions of the answer of the drainage district.

After the case was fully at issue and the pre-trial conference held, additional counsel appeared for the drainage district and filed a motion to dismiss the action 'for the reason that the pleadings disclose the Court has no jurisdiction of the subject matter of the action.'

At the hearing on this motion April 15, 1959, previous admissions of counsel for the drainage district were conceded. At the request of counsel for the landowners stricken portions of the third amended petition were restored, and the drainage district's previous motion to strike allegations from the third amended petition was overruled by agreement with counsel for the drainage district. The motion to dismiss the action was overruled by the trial court and appeal has been perfected from this ruling.

It may be noted at this point the answer of the drainage district, not having been altered in any way after restoration of the stricken allegations from the third amended petition, admits the condemnation proceedings to be void. Furthermore, if the motion to dismiss is to be regarded as equivalent to a demurrer, as counsel for the drainage district contend it should, then the motion itself admits the truth of the well-pleaded facts in the third amended petition, and thus admits the condemnation proceedings to be void.

The appellees (landowners) challenge the right of the appellant to be heard, contending that an order overruling a motion to dismiss is not a final order and therefore not appealable under G.S.1949, 60-3302.

While this court has repeatedly held that the overruling of a motion to dismiss an action by the defendant is not a final order, and is not one of those orders of the district court from which an appeal lies to the Supreme Court until final disposition of the cause in the court below (Kansas State Highway Comm. v. Moore, 166 Kan. 408, 201 P.2d 652; In re Estate of Sims, 182 Kan. 374, 321 P.2d 185; Sherk, Administratrix v. Sherk, 181 Kan. 297, 310 P.2d 899; and Schraeder v. Sisters of St. Joseph, 187 Kan. 509, 257 P.2d 854), there have been exceptions where the order overruling a motion to dismiss was considered equivalent to an order overruling a demurrer to the petition based upon the statutory ground set forth in G.S.1949, 60-705, First. Wright v. Rogers, 167 Kan. 297, 205 P.2d 1010. On this point Collins v. Richardson, 171 Kan. 152, 230 P.2d 1018, 1021, cannot be distinguished from the facts in the instant case. There the issues had been made up by the pleadings and a pre-trial conference was held, after which the defendant filed a 'motion to dismiss for lack of jurisdiction.' The trial court overruled the motion to dismiss and appeal followed. In the opinion the court said:

'* * * Since this motion raises a question of the jurisdiction of the court the same as a demurrer would have done under G.S.1949, 60-705, First, we review the ruling of the court denying it * * *' 171 Kan. at page 156, 230 P.2d at page 1021.

In the case presently before the court the motion to dismiss challenges only the jurisdiction of the trial court as to the subject matter of the action, thus raising the same question which a demurrer to the third amended petition...