Diefenbach v. State Highway Commission

• Decision Date: 06 November 1965
• Docket Number: No. 44179,44179
• Parties: Edwin J. DIEFENBACH and Mildred I. Diefenbach, His Wife, and Edna Diefenbach, Landowners, Appellants, v. The STATE HIGHWAY COMMISSION of Kansas, Condemner, Appellee.
• Court: Kansas Supreme Court

Page 228

407 P.2d 228

195 Kan. 445

Edwin J. DIEFENBACH and Mildred I. Diefenbach, His Wife, and Edna Diefenbach, Landowners, Appellants, v. The STATE HIGHWAY COMMISSION of Kansas, Condemner, Appellee.

No. 44179.

Supreme Court of Kansas.

Nov. 6, 1965.

Rehearing Denied Dec. 10, 1965.

Syllabus by the Court

1. It is the universal rule of this court that a verdict, if supported by substantial evidence, will not be disturbed on appeal.

2. Ordinarily a verdict for actual damages will not be disturbed because this court cannot definitely ascertain the precise method by which the jury arrived at the exact amount of its verdict when such amount is reasonably within the range of the evidence.

3. In an appeal from the appraisers' award in a condemnation proceeding it is not error for a witness to give as his opinion that the right of access was a property right but that its restriction did not result in damages.

4. In an eminent domain proceeding the landowners are entitled to compensation based on the full use which the condemner has the right to exercise over the easement condemned as described in the condemner's petition and considered by the appraisers.

5. Where a perpetual easement is taken on land for a borrow pit by eminent domain the landowner is entitled to compensation based on the value of the fee.

6. An appeal from the appraisers' award in an eminent domain proceeding is docketed and tried as any other civil action and the general rules of civil procedure apply.

7. An objection to evidence cannot be made for the first time on appellate review.

E. P. Villepigue, Wichita, argued the cause, and I. H. Stearns, Wichita, was with him on the briefs, for appellants.

Charles C. McCarter and David W. Craig, Wichita, argued the cause and were on the briefs for the appellee.

HATCHER, Commissioner:

This controversy stems from an award in a condemnation proceeding.

The State Highway Commission determined that it was in the public interest to build a controlled-access highway which would by-pass Wichita, Kansas on the west and north in such a manner as to connect State Highway 254 running east to El Dorado, Kansas with Interstate Highway 235 and avoid the necessity of the traffic passing through the city of Wichita. It was necessary to condemn certain lands for such purpose including part of appellants' land.

The appellant landowners own a farm consisting of 274.62 acres outside the city limits of Wichita which was generally described as:

'The North 42.09 acres of the East Half (E/2) of the Soughwest Quarter (SW/4) of Section 23; the East Half (E/2) of the Northwest Quarter (NW/4) of Section 23; and the Northeast Quarter (NE/4) of Section 23, all in Township 26 South, Range 1 East, Sedgwick County, Kansas.'

The land is bounded on the north by 53rd Street and on the east by North Oliver Street. The C. R. I. & P. Railroad runs diagonally across the land from the soughwest. The new highway was to parallel the railroad right-of-way on the west.

The State Highway Commission condemned five separately described tracts from the appellants' land. A rough map appended to the opinion will sufficiently identify the tracts without including the lengthy metes and bounds descriptions. The general information contained in the condemner's petition may be summarized as follows:

Tract (a) contains 5.28 acres in the southwest quarter of Section 23 taken for the construction of part of the controlled access highway.

Tract (b) contains 20.88 acres in the east half of the northwest quarter and the northeast quarter of Section 23 taken for the new controlled-access highway and also land taken in a triangular shape west of the railroad right-of-way abutting 53rd Street for the construction of an overpass on 53rd Street. The interest taken is described as 'An Easement for Right-of-Way for Controlled-Access Highway Purposes.'

Tract (c) contains .30 acres taken from the east half of the northwest quarter of Section 23 for a channel change and for removal of borrow material.

Tract (d) contains 4.94 acres in the northeast quarter of Section 23 abutting on existing 53rd Street east of the railroad right-of-way. The interest taken is described as 'An Easement for Right-of-Way for Controlled-Access Highway Purposes.' However, all of this land was taken for the construction of the east half of the overpass on 53rd Street.

Tract (e) is the 20.07 acres taken to remove borrow material in the east half of the west half of Section 23.

The court appointed appraisers valued the 51.47 acres of land taken at $47,456.00 and estimated damages to the remainder at $6,032.00, or a total of $53,488.00. Both the landowners and the condemner appealed from the appraisers' award. Following the trial of the matter on appeal the jury rendered a verdict in favor of the landowners for $49,000.00. The fair and reasonable value of the land taken was found to be $39,000.00 leaving $10,000.00 as damages to the remainder.

The landowners have appealed to this court from the verdict of the jury and the judgment rendered thereon.

The appellants contend generally that the trial court erred in overruling the motion to set aside the verdict and for a new trial. They make a specific charge that the verdict was grossly inadequate, contrary to the evidence and not supported by any competent evidence. We cannot agree with this contention. The amount reached by the jury in its verdict was well whthin the range of the testimony of the expert witnesses. The testimony of the witnesses as to the total award due the landowners ranged from $46,705.00 to $75,115.50. The jury's general verdict of $49,000.00 was well within that range.

It is a universal rule of this court that if a verdict is supported by substantial evidence it will not be disturbed on appeal. (McCarthy v. Tetyak, 184 Kan. 126, 334 P.2d 379; Townsend, Administrator v. Jones, 183 Kan. 543, 555, 331 P.2d 890; Purvis v. Brenner, 189 Kan. 369, 374, 369 P.2d 253.) Neither will a verdict for actual damages be disturbed merely because this court cannot definitely ascertain the precise method by which the jury arrived at the exact amount of its verdict when such an amount is reasonably within the range of the evidence. (Will v. Hughes, 172 Kan. 45, 238 P.2d 478; Taylor v. State Highway Commission, 182 Kan. 397, 320 P.2d 832; Johnson v. Colorado Interstate Gas Co., 182 Kan. 474, 479, 322 P.2d 781.)

If the evidence of the expert witnesses was competent it was ample to support the verdict of the jury. This brings us to the more serious question: Was incompetent testimony erroneously admitted as to damages to the remaining land or the value of the land taken?

The appellants state in their brief:

'In the case at bar the Commission tried the case on the erroneous theory that they were not taking the right of access to 53rd Street, and undoubtedly instructed their witness * * * to base his testimony on such theory. * * *'

We do not so understand the commission's position. The commission does not contend that there was no loss of actual right of ingress and egress to 53rd Street, neither does it contend that the landowners were not damaged because there was no taking of the legal access. The commission simply contends that its witness had the right to express his opinion to the effect that the access taken caused no damage to the remainder of the land. The witness testified:

'Q. Well, you mean you didn't give any damage, then you didn't consider that they were damaged by reason of that loss of access, did you?

'A. That is what I stated, that in my opinion they were not damaged.

'Q. Did you consider a loss of access a property right of an abutting owner or not, * * *?

'A. There is no legal loss of access.

'Q. It isn't a question of legal loss of access. The question is whether there was a loss of access. I'm asking, did you consider the loss of access from an existing road was or was not a property right of the Diefenbachs before their land on the north side was taken?

'A. It's property right, but in my opinion it had no value.'

It is quite clear that what the witness was attempting to say on cross-examination was that there was no compensable damages for loss of access. The right of access was a property right but in the witness' opinion it had no value.

The appellants next complain of the witness' valuation of the twenty and a fraction acres condemned for a borrow pit. The witness valued the acreage at 75% of the fee value of $750.00 per acre because only an easement was taken and the owners would some day get back the acreage taken.

The valuation by the witness of the land taken for a borrow pit was based on an erroneous theory. The commission took a perpetual easement in the acreage. The interest taken by...