Dick v. Drainage Dist. No. 2 of Harvey, Reno, and McPherson Counties
| Decision Date | 06 March 1954 |
| Docket Number | No. 39244,39244 |
| Citation | 267 P.2d 494,175 Kan. 869 |
| Parties | DICK et al. v. DRAINAGE DIST. NO. 2 OF HARVEY, RENO, AND McPHERSON COUNTIES et al. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. Where it appears that by reason of changed circumstances between the institution of an action and the trial thereof that a judgment would be unavailing as to the real and/or particular issue presented the case is moot and judicial action ceases.
2. This court is committed to the rule that a question raised on appeal will not be considered and decided where it appears that by reason of changed circumstances its decision on the question presented would be of no consequence to the real and/or particular issue involved in the court below.
3. The record in an action by owners of separate tracts of real estate to enjoin a drainage district from entering upon their lands and constructing a drainage ditch thereon under and by virtue of an alleged void condemnation proceeding, examined on appellate review, where it is conceded the involved drainage ditch had been constructed and plaintiffs were no longer entitled to injunctive relief, and held, that since the relief claimed under the allegations of the petition is purely injunctive, the issues involved in the case are moot and the cause should be remanded with instructions to dismiss the action.
J. R. Rhoades, McPherson, and J. G. Somers, Newton, and George R. Lehmberg, McPherson, and George A. Robb, Newton, on the briefs, for appellant Drainage District.
Lelus B. Brown, County Attorney of Harvey County, Newton, for appellant County Treasurer.
Kenneth G. Speir, Newton, and Vernon A. Stroberg and Herbert H. Sizemore, Newton, on the briefs, for appellees.
This is an appeal from orders overruling separate demurrers to a petition.
Under appropriate allegations the pleading in question discloses the corporate existence of the defendant Drainage District, the official character of the defendant County Treasurer, and that plaintiffs are the owners of separate tracts of real estate, located in Harvey County, over which the corporation is attempting to condemn a right of way. It next charges the purported condemnation proceedings are void and of no effect because (1) the petition for condemnation fails to set forth the size of the ditches, levees, dikes, and other works required by statute, G.S.1949, 24-612; (2) the plans and specifications, attached to and filed with the condemnation petition, are so vague, incomplete and illegible that neither the landowners nor the appraisers could determine the nature or extent of any levees, dikes or other works proposed by the condemnation; (3) the report of the appraisers shows upon its face that such appraisers lost jurisdiction to make the appraisement shown by their report for the reason they adjourned to meet on different occasions, without fixing a time and place certain for the holding of such meetings as required by law; and (4) that the appraisers failed to give the plaintiffs an opportunity to present their estimate of damages and values after having agreed with them and their attorneys that they would do so.
The petition then alleges in substance that prior to the commencement of the action the Drainage District deposited with the Treasurer of Harvey County the amount of compensation found to be due the involved landowners under the terms of the appraisers' report and thereupon entered upon plaintiffs' lands and commenced construction of the proposed drainage ditch. Subsequently it asserts the drainage district should be enjoined and restrained from proceeding with the construction of the drainage ditch and that the county treasurer should be ordered and directed to return the money deposited with her by the district. And finally it prays:
'* * * that the Court find and adjudge said purported condemnation proceedings to be null and void, to restrain and enjoin the defendant Drainage District, its agents, servants, and employees, from proceeding further or from further entering upon the lands of these plaintiffs under claim of right by virtue of said condemnation proceedings, that the defendant, * * * Treasurer * * *, be ordered and directed to refund the moneys deposited with her by said Drainage District to said Drainage District, and for such other and further relief as to the Court seems just and equitable, together with the costs of this action.'
Each of the defendants demurred to the foregoing petition on the ground it failed to state facts sufficient to constitute a cause of action. Following the overruling of such demurrers, as has been heretofore indicated, they perfected the instant appeal.
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Dick v. Drainage Dist. No. 2 of Harvey, Reno and McPherson Counties
...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 ......
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