Flemming v. The Board of County Commissioners of The County of Ellsworth
| Decision Date | 07 November 1925 |
| Docket Number | 26,151 |
| Citation | 119 Kan. 598,240 P. 591 |
| Parties | EMIL FLEMMING, Appellee, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF ELLSWORTH, Appellant |
| Court | Kansas Supreme Court |
Decided July, 1925.
Appeal from Ellsworth district court; DALLAS GROVER, judge.
Judgment modified and affirmed.
SYLLABUS BY THE COURT.
1. HIGHWAYS--Establishment by Statutory Proceedings--Landowner's Claim for Damages. In a proceeding for laying out a road a landowner is not entitled to damages or compensation for premises not described in his claim for damages.
2. ESTOPPEL--Grounds of--Claims in Judicial Proceedings. After a board of county commissioners has laid out a road by the statutory condemnation proceedings in which a landowner has been allowed damages, it cannot, on trial of an appeal from the award, defeat recovery or reduce the amount thereof, by showing a previous dedication by prescription over the same route, or a part thereof.
3. EVIDENCE--Parol Evidence Affecting Writing--Highway Records. The records of the proceedings of the county commissioners pertaining to laying out a road, required by law to be kept and which are unambiguous, cannot be modified by parol testimony, in a collateral proceeding.
4. EMINENT DOMAIN--Compensation--Measure of Damages--Interest. In a proceeding to condemn private property for public use in laying out a road, a landowner whose property is appropriated is entitled to interest, or what amounts to the same thing, damages in the nature of interest, between the time of the appropriation and the time of the rendition of judgment.
Ira E. Lloyd, N. F. Nourse and George D. Miner, county attorney, all of Ellsworth, for the appellant.
Samuel E. Bartlett, of Ellsworth, for the appellee.
This is an appeal from an award of damages for laying out a road. On the trial plaintiff was allowed a sum in excess of that allowed by the board of county commissioners, and the county has appealed.
The road was petitioned for in May, 1916. The owner of land through which it passed presented a claim for damages in the sum of $ 732.75. The road was viewed by the county commissioners acting as viewers, damages were allowed the owner in the sum of $ 157.80, the road was allowed and ordered opened, and the owner appealed from the award. This was in September, 1916.
In May, 1917, a new petition was filed to vacate nineteen chains of the road as established in 1916, and to locate a new road over a different course for that distance. The same landowner presented a claim for damages for $ 2,000. The county commissioners acted as viewers and also upon the petition to vacate and locate, and allowed the petition. They also allowed the landowner's claim of damages in the sum of $ 662.07, and this was paid; there has been no appeal from that award.
In September, 1917, in the appeal pending, the commissioners, by permission of the court, filed a supplemental answer in which it was alleged that in settling the claim of the landowner for damages to the road in 1917 it was agreed that the $ 662.07 paid should be in full payment of all damages in both proceedings. Later, and in January, 1922, by permission of the court, a further amendment was made by the county commissioners to the answer, in which it was alleged that part of the road for which the landowner claimed damages had been opened and used as a public highway for more than thirty years. To the answer as so amended the landowner filed a general denial, and this case went to trial upon those issues, with the result above stated.
The landowner's claim of damages presented to the viewers and acted upon by the county commissioners, was "To damage on account of building fences, making gates, upkeep of gates and fences, the taking of land, and injury to land and breaking up pasture and ranch, and other damages to the undersigned, owner of the following described premises and lands, to wit: Section 23 and a fraction of the southwest quarter of section 14," in a certain township and range. Upon the trial he offered evidence that he owned other land, not in sections 23 or 14, and adjoining that land, making in all about 2,160 acres; that a part of the land owned by him in section 24 was taken by the road, as petitioned for, and that his entire ranch was damaged by reason of the location of the road $ 5 per acre. Other witnesses produced by him placed the damage to the ranch as a whole at from $ 3 to $ 5 per acre. Appellant's objection to this evidence was overruled, and complaint is made of that ruling. The statute pertaining to presenting claims for damages specifically provides that the landowner in his claim shall give "a description of the premises on which damages or compensation are claimed." (R. S. 68-106.) Appellant contends that by describing no other property in his claim for damages than sections 23 and 14 the owner cannot, upon the trial of the appeal from the award, claim damages to other property. This point is well taken. Had the owner presented no claim for damages he would have waived all damages, and it necessarily follows that when in his claim for damages he described the premises on which damages or compensation was claimed as sections 23 and 14, he waived damages to any other land owned by him, and he should not be allowed to enhance the amount of his recovery by claiming damages to other property. The jury, answering a special question as to how much they allowed the owner for damages to land other than that in sections 23 and 14, answered, "$ 11.50"; so it appears that this error of the trial court affected the amount of the recovery only in that sum.
Appellant complains because the trial court refused evidence offered that prior to the proceedings to establish the road in question a part of the road had in fact been established by prescription, that it had been opened and used by the public and public moneys expended improving it, for a period of more than thirty years. There was no error of the court in this respect; the evidence was not competent. After a board of county commissioners had established a highway by the ordinary condemnation proceedings, in which a landowner had been allowed damages, it cannot, on the trial of an appeal from the award, defeat recovery by showing a previous location of a road over the same route by prescription. The fact that the county commissioners entertained a...
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