Dye v. Company

• Decision Date: 07 March 1908
• Docket Number: 15,436
• Parties: ELEANOR P. DYE v. THE MIDLAND VALLEY RAILROAD COMPANY et al
• Court: Kansas Supreme Court

94 P. 785

77 Kan. 488

ELEANOR P. DYE v. THE MIDLAND VALLEY RAILROAD COMPANY et al

No. 15,436

Supreme Court of Kansas

March 7, 1908

Decided January, 1908.

Error from Cowley district court; CARROLL L. SWARTS, judge.

STATEMENT.

THIS is an action involving proceedings to condemn land for a right of way for a railroad company, which land the plaintiff in error claims to own, and in which the Hill Investment Company and George S. Howard each claim to have an interest. After the commissioners had fixed the amount of damages which would result to the landowners on account of the right of way the plaintiff in error, being dissatisfied with the amount of the award, appealed to the district court. Her interest in the real estate depended entirely upon a tax deed. The Hill Investment Company and George S. Howard did not appeal from the award, but were permitted to intervene in the district court, where, by interplea duly filed, they set up their claim to the land and their right to the damages allowed. The amount of damages was tried to a jury, and increased by them from $ 330 to $ 515.

After the verdict was returned the issues between the plaintiff in error and the intervenors were submitted to the court for trial, and it decided in substance that the plaintiff in error's tax deed was void on its face, but that she was entitled to a tax lien thereunder to the amount of $ 82; that the intervenors were the owners of the fee title to the real estate and entitled to the amount of damages awarded by the commissioners, less the tax lien of the plaintiff in error that the railroad company was entitled to the difference between the amount of the verdict and the award of the commissioners on account of the failure of the intervenors to appeal from such award.

The court made and filed findings of fact and conclusions of law. The fourth finding of fact reads:

"The court further finds that said tax deed is void on its face on account of its failure to recite and show whether the taxes on said lots for any of the years subsequent to the year 1893 and prior to the year 1901 were paid, and whether such taxes were included in the compromise made by the county commissioners of October 8, 1901, and if so, the amount of said taxes; and for the further reason that said deed fails to show upon its face for what amount each separate lot was conveyed by such tax deed."

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. TAX DEEDS -- Sale of Separate Tracts -- Consideration . A tax deed which has not been recorded five years, and conveys several separate tracts of land, is void on its face when its recitals do not show the amount for which each tract was conveyed.

2. TAX DEEDS -- Compromise Sale -- Consideration. A tax deed, executed in pursuance of a compromise sale of lands held by the county under the provisions of section 7672 of the General Statutes of 1901, which has not been recorded five years, is void on its face if its recitals do not show that each tract of land described in the deed was sold for a sum not in excess of the tax and interest due thereon.

3. TAX DEEDS -- Deed Recorded Five Years -- Construction. A tax deed which has been recorded five years or more will not be deemed invalid if, by the aid of a reasonably liberal construction of its recitals and statements and by the application of reasonable inferences and presumptions, it can be held to contain the recitals required by the statute.

4. TAX DEEDS -- Deed Not Recorded Five Years -- Construction. A tax deed which has not been recorded five years will be deemed invalid unless it contains, substantially, the recitals prescribed by the statute, unaided by the liberal rules of construction--the application of inferences and presumptions--which are permissible where the tax deed has been of record five years or more.

5. CONDEMNATION PROCEEDINGS -- Transfer Effected --Compensation. Where a railroad company, under the proceedings prescribed by statute, condemns real estate for a right of way and other purposes, such proceedings will effectuate a transfer of the land to the railroad company, and in lieu thereof the owners will receive the damages awarded in the same proportions in which they held the land.

6. CONDEMNATION PROCEEDINGS -- Appeal from Award -- Intervention. Where, in such a case, a part of the owners of the land condemned appeal from the award of the commissioners to the district court, where the question of damages is submitted to and determined by a jury, the court may permit the owners not appealing to interplead for the purpose of contesting their right to the damages awarded.

A. M. Jackson, and A. L. Noble, for plaintiff in error.

J. Mack Love, and C. W. Wright, for defendants in error.

OPINION

GRAVES, J.:

It is claimed that the district court erred in permitting the intervenors to litigate the validity of the plaintiff in error's tax deed in this proceeding, and that it also erred in adjudging that the deed was invalid. The Midland Valley Railroad Company inaugurated the condemnation proceedings in this case for the purpose of appropriating the land in controversy for right-of-way purposes. Apparently the proceedings were conducted in compliance with the statute; the land thereby became vested in the railroad company, and the money awarded as damages was transferred to the owner or owners of the land taken. Any dissatisfied owner might have appealed from the award of the commissioners to the district court, where the amount of damages could have been submitted to a jury. The plaintiff in error exercised this right. In such cases the owners and all parties having an interest in the land must look to the damages, as finally allowed, for compensation, as such damages, so far as the landowners are concerned, take the place of the land appropriated. (C. K. & W. Rld. Co. v. Sheldon, 53 Kan. 169, 35 P. 1105.) The amount of damages awarded covers all the injury sustained by the owner or owners of the tract upon which the right of way is located. Where, as in this case, the entire tract is appropriated, the full value thereof is awarded. The land taken in this case was town lots in the city of Arkansas City. A part of the report of the commissioners reads:

"We find that the land herein condemned and appropriated over and across the same for a right of way and other railroad purposes, and required for the proper construction and operation of the Midland Valley Railroad, is the whole of said lots.

"And after going upon and personally inspecting and viewing the premises, we adjudge as full compensation for said land so taken, and for all damages done and to be done by reason of the construction and operation of said railroad over the same, . . . the sum total of $ 330, the said sum to be deposited with the treasurer of Cowley county, Kansas, to be paid by him to the party or parties who shall by appropriate proceeding establish his or their right to the same.

"And so we award."

From this it appears that the damages awarded were not intended to be compensation for the plaintiff in error alone, but were intended to cover the entire loss sustained by the owners of the land, whoever or wherever they might be. If the intervenors had any right to the land before it was condemned, such right was, by the condemnation proceedings, transferred to the fund awarded as damages for the land taken, and to that fund they are compelled to look for compensation.

Where no express provision is made by statute for the filing of an interplea, an application to do so is addressed to the sound discretion of the court, and its action thereon will not be set aside unless it clearly appears that such discretion has been abused. A district court will, in furtherance of justice, permit such pleas to be filed by persons not parties to the suit, or proceeding, whenever necessary for the protection of existing rights of such persons relating to the subject-matter of litigation. (Gibson v. Ferrell, ante p. 454.) The application to interplead was made by the intervenors in this case immediately after the amount of damages had been finally determined. It seems...