Eisenring v. Kansas Turnpike Authority, 41104

• Decision Date: 06 December 1958
• Docket Number: No. 41104,41104
• Citation: 183 Kan. 774,332 P.2d 539
• Parties: Victor B. EISENRING, Appellee, v. KANSAS TURNPIKE AUTHORITY, Appellant.
• Court: Kansas Supreme Court

Page 539

332 P.2d 539

183 Kan. 774

Victor B. EISENRING, Appellee, v. KANSAS TURNPIKE AUTHORITY, Appellant.

No. 41104.

Supreme Court of Kansas.

Dec. 6, 1958.

Syllabus by the Court

1. Where a part of the land upon which there is an outstanding leasehold interest for the production of sand is condemned, the absence of market value, in the sense that there is a lack of evidence of comparable sales of leasehold interests in sand, does not prevent recovery by the owner of the lease. It is proper to determine the market value by considering the intrinsic value of the property, and its value to the owner for his special purposes provided the special uses or purposes to which the property is adapted are real--founded upon facts capable of proof--and not merely speculative or imaginary. It is the value which the owner of the lease has, and of which he is deprived, which must be made good by compensation.

2. In the absence of market value, in the sense that the special type of property is not commonly bought and sold, resort must be had to the testimony of more specialized experts. The value of property for a special use to which it is adapted or put may be shown by persons familiar with such use, even though they are not familiar with land values generally. If a witness, by reason of his skill, learning or technical training, understands the adaptability of the lands in question for a particular purpose and the demand for land for such purpose, he may state the market value of the property.

3. A tenant under a lease is an 'owner' of property within the meaning of that term as used in our condemnation statutes, and is entitled to compensation if his leasehold estate is damaged by the exercise of eminent domain.

4. Where a sand lease (a special type of property), which is valuable only because of its sand yield, is condemned, and such lease is in operation and the element of income is present at the time of the condemnation, income to the lessee is of necessity a factor to be considered in determining the fair market value of such lease.

5. On facts set forth in the opinion, the trial court correctly ruled on objections to questions put by counsel for appellant to appellee's expert witnesses, and did not deny appellant the opportunity to fully cross examine such witnesses as to the method used in computing their opinions as to fair market value.

Thomas W. Cunningham, Wichita, argued the cause, and Robert S. Lomax and Fred J. Gasser, Wichita, and Robert M. Cowger and Bruce Works, Topeka, were with him on the brief, for appellant.

Lyndon Gamelson, Wichita, argued the cause, and Milton Zacharias, Kenneth H. Hiebsch, Richard A. Render, Albert L. Kamas, Donald E. Lambdin and David G. Arst, Wichita, were with him on the brief, for appellee.

SCHROEDER, Justice.

This is a condemnation action arising from the separate appeal of a lessee when the Kansas Turnpike Authority condemned part of the land upon which the lessee had a sand lease.

From a verdict and judgment in favor of the lessee the Kansas Turnpike Authority duly perfected an appeal presenting the questions hereafter discussed.

Damages to the landowner by reason of the condemnation of this particular tract of land were disposed of by settlement in another case, after the original opinion of this court was announced in Moore v. Kansas Turnpike Authority, 181 Kan. 51, 310 P.2d 199, and prior to its reversal on rehearing in 181 Kan. 840, 317 P.2d 384, on October 25, 1957, and are, therefore, not an issue in this case. At that time the rights of the lessee were preserved by stipulation of counsel and the severance of the two claims is not an issue in this appeal.

The appellant presents two questions in its brief:

1. Did the trial court err in allowing the expert witnesses produced by the lessee, appellee herein, to testify over appellant's objection as to the fair and reasonable market value of a sand lease when it was admitted by these experts that they had no knowledge of a sand lease ever having been sold?

2. Did the trial court err in refusing to allow appellant the opportunity to fully cross examine the appellee's expert witnesses as to the method used in computing their opinions of the market value?

In the instant case, the appellee, Victor B. Eisenring, was lessee of a 26.36-acre sand and gravel lease near the plant of the Boeing Airplane Company and the McConnell Air Base in Wichita. Insofar as material to this appeal, the term of the lease was from September 4, 1954, until September 4, 1956. At the time of the taking by the turnpike on June 23, 1955, a little over 14 months remained prior to the expiration of the lease. Mr. Eisenring was operating the lease by a 'pumping' type operation with a lake, barge and sand pump.

The Kansas Turnpike Authority condemned its right of way and installed the turnpike highway through the approximate middle of the lease, leaving approximately 10 acres on the south accessible from McArthur Road, which is a street in Wichita. The remaining portion of the lease is covered by the turnpike highway and that portion to the north which is not occupied by the turnpike was made inaccessible. The turnpike appraisers apparently disregarded the lease of Victor B. Eisenring, as no appraisal or award was shown. Mr. Eisenring proceeded to obtain a jury determination of his damages, and the jury found that the fair market value of the Eisenring lease before the taking by the Kansas Turnpike Authority was $32,000, and immediately after the taking was $16,000. It therefore assessed the amount of damages at $16,000. The turnpike appealed from this verdict and the judgment entered thereon.

Directing our attention now to the first question above stated, the turnpike contends, that inasmuch as each of these expert witnesses testified that he had no knowledge of a sand lease ever having been sold in the area around Wichita, they were not qualified to testify.

The following expert witnesses were called to testify for the appellee. Mr. Don Moehring, a graduate and licensed engineer, had done consulting work as a civil engineer for many companies including producers and users of sand and other materials, was a design and construction engineer for the United States Army in World War I, and helped organize the State Highway Department of South Dakota. He testified that the value of the leasehold before the taking by the turnpike was $49,181.25 and the fair market value after the condemnation was $9,890.63, the difference being $39,290.62.

P. R. York, an independent sand producer for 21 years in Sedgwick County, testified that he generally leased the ground where he conducted his sand pumping operations, and had examined this particular lease on various occasions; that sites for sand operations in this area were very scarce; that the market value of the leasehold was $52,460 immediately prior to the condemnation and that the market value of the lease immediately after the taking was $10,550, a difference of $41,910.

Mr. W. B. Tolbert was superintendent of the Superior Sand Company which produces fill sand, concrete sand, mason sand and road gravel for commercial sales, and supplies materials for ready-mix operations. The owners of the company carry on a paving business and asphalt business known as Richie Brothers Construction Company and Allen's Incorporated. He testified as to the characteristics of the lease and he had made tests of the sand in the particular area. In his opinion the market value of the leasehold interest was $50,230.45 before the taking, and the market value of the lease after the taking was $10,101.62, a difference of $40,128.83.

Mr. Robert R. Provence, who had been in the business of commercial sand production for 28 years, had hauled some of the material from Mr. Eisenring's operation until the turnpike went through the lease. He had done a lot of business in the southeast part of Wichita during 1954 and 1955 and testified as to the location feature of this particular lease and the hauling problem in connection with sand production. He had tried to find another sand location in that area without success. His opinion of the fair market value before the taking was $47,214, and after the taking was $9,495, a difference of $37,719.

The witnesses for the appellee pointed out that there was sand under much of the City of Wichita close to the river, but no commercial sand available east of the point where the terrain comes up out of the river area. For example, there is no commercial sand east of the air base. The testimony developed that there had been a sand operation immediately across McArthur Road to the south of the Eisenring lease, which was already exploited. The other area in the immediate vicinity of the sand lease was either residential or industrial development and could not be obtained for sand operations.

An exhibit prepared by a licensed engineer was introduced into evidence to show the acreage in the Eisenring lease and the quantity of sand in the leasehold. It disclosed that 7.41 acres and 194,300 cubic yards were occupied by the turnpike right of way, and that 9.39 acres and 139,200 cubic yards were made inaccessible by the turnpike right of way.

Mr. Robert Bright, a graduate engineer and superintendent for Martin K. Eby Construction Company, testified as to the large scale construction projects going on during the 1954-1955 period, during the tenure of this lease, such as the Materials Building at Boeing Airplane Company which covered an area of 22 acres and required fill sand from 3 to 10 feet in depth over the entire area. A conservative estimate of the quantity of fill sand needed was between 150,000 to 175,000 tons. There was also a 5,600 car parking ramp for Boeing Aircraft requiring approximately 45,000 tons of fill sand. A new runway at McConnell Air Base approximately 300 feet wide and 2 miles long required a fill sand cushion underneath the slab and also fill sand in the sewage...