Foster v. City of Augusta

• Decision Date: 11 April 1953
• Docket Number: Nos. 38898,38892,s. 38898
• Citation: 256 P.2d 121,174 Kan. 324
• Parties: FOSTER et al. v. CITY OF AUGUSTA. CARTER v. CITY OF AUGUSTA.
• Court: Kansas Supreme Court

Page 121

256 P.2d 121

174 Kan. 324

FOSTER et al. v. CITY OF AUGUSTA.

CARTER v. CITY OF AUGUSTA.

Nos. 38898, 38892.

Supreme Court of Kansas.

April 11, 1953.

Syllabus by the Court.

1. Findings of fact and conclusions of law, when final and filed by the court, constitute the decision of the court within the meaning of the code requiring a motion for a new trial to be filed within three days after the decision is rendered.

2. Within the same term at which a decision is rendered, the trial court has absolute power over it and may modify, alter, change or vacate it in whole or in part.

3. Remarks of a trial court indicating its theory or reasoning in arriving at a judgment form no part of the judgment and cannot limit or narrow the judgment actually rendered.

4. Question for appellate court is whether judgment is correct, not whether ground on which it professes to proceed is tenable.

5. Contentions respecting the manner in which the trial court arrived at its final decision as to the amount of damages sustained to the real estate involved are examined and held, the facts of record do not warrant a conclusion that there was reversible error in the court's method of computation.

6. Before the rendition of judgment, interest is not recoverable on unliquidated damages which are not ascertainable by computation based on some fixed standard of measurement.

7. Where damages to land are sought, by reason of the construction of a flood control levee, the proper course is to ascertain the entire amount of damages to the land as though the property belonged to one person, and then apportion such sum among the different parties according to their respective rights.

8. Record examined in an action for damages to land caused by the construction of a flood control levee, under G.S.1949, 12-635 et seq., and held: That the owner of the life estate in said land is entitled to damages to her interest in the land, and the equitable formula for computing the amount, in the instant case, is the total value allowed ($2,885.71), times the legal interest (6 per cent per annum) thereon, times her life expectancy of 1.63 years from the date judgment was entered.

R. A. Munroe, of Augusta and George J. Benson, of El Dorado, argued the cause, and were on the briefs for the City of Augusta.

John F. Eberhardt, of Wichita, argued the cause, and J. B. McKay, of El Dorado and George Siefkin, George B. Powers, Samuel E. Bartlett, Carl T. Smith, Stuart R. Carter, Robert C. Foulston, Jr., and Malcolm Miller, all of Wichita, were with him on the briefs for the appellees and cross-appellants in case No. 38,898, and for appellant in case No. 38,892.

WERTZ, Justice.

These consolidated four cases are the fourth appearance in this court involving the parties in their actions to recover damages from the City of Augusta alleged to have resulted to their property by reason of the construction of a flood control levee under G.S.1949, 12-635 et seq. The legal and factual background of these consolidated appeals is set forth in our three former opinions in Loomis v. City of Augusta, 151 Kan. 343, 99 P.2d 988; Foster v. City of Augusta, 165 Kan. 684, 199 P.2d 779, and Foster v. City of Augusta, 170 Kan. 5, 223 P.2d 730, and need not be repeated here.

In the last of those prior decisions we held the plaintiffs' petition stated a cause of action and plaintiffs were entitled to recover judgment if able to prove their lands had in fact been damaged by reason of defendant's flood control levee. Accordingly, the two basic issues in the court below were: (1) Whether plaintiffs' lands were damaged by reason of the levee and, if so (2) the difference in value of the land of each plaintiff immediately before and immediately after the construction of the levee.

Subsequent to the last opinion in these cases, the trial court consolidated the actions and they were tried by the court without a jury. At the conclusion of the evidence, the court made findings of fact and conclusions of law in each case, finding that the lands of each of the plaintiffs had been damaged, and in case No. 38,898 rendered judgment in favor of plaintiffs Foster, Wilson and Loomis, and in case No. 38,892 rendered judgment in favor of the City of Augusta on the theory that while the Carter land had been damaged, Mrs. Catherine Carter, having but a life estate in said land, had not suffered any damage.

From the judgment rendered in favor of the plaintiffs in the first three cases, the city appeals, and plaintiffs cross-appeal on certain issues, and from the judgment in favor of the city as against Catherine Carter, she appeals, each assigning certain specifications of error, which will be hereinafter taken up in the proper sequence.

For the purpose of clarity, we will hereinafter refer to appellees and cross-appellants Ira M. Foster, Laurance L. Wilson, M. S. Loomis and Catherine Carter as plaintiffs, and appellant and cross-appellee the City of Augusta, as defendant, or city.

At the outset plaintiffs, as cross-appellants, challenge the right of the city to be heard on certain asserted errors, on the ground the city failed to file their motion for new trial within the three-day limit required by statute, G.S.1949, 60-3001 and 60-3003, after the court had filed its findings of fact and conclusions of law on April 21, 1952, so there would be nothing that could come up on their appeal except the question as to the sufficiency of the findings and conclusions to support the judgment. Benson v. Rosebaugh, 128 Kan. 357, 278 P. 41.

Findings of fact and conclusions of law were filed April 21, 1952. The city within three days filed in each case, except the Carter case, a motion to vacate, modify and set aside certain findings and conclusions, and plaintiffs Loomis, Foster and Wilson each filed motions for judgment upon the findings of fact and conclusions of law. Plaintiff Carter filed her motion to vacate and set aside the second finding of fact and the conclusion of law applicable to her case, and for judgment on other factual findings.

On May 14, 1952, the trial court after a hearing on the mentioned motions made certain minor corrections in its findings and overruled the motions of the city and Carter, and sustained the motions of plaintiffs Loomis, Foster and Wilson, and entered judgment in accordance with its findings and conclusions in each case.

Thereafter on the same day the city for the first time filed a motion for a new trial, which was presented and argued over plaintiffs' objections that the motion was not filed within three days from April 21, 1952.

Counsel for the plaintiffs are correct as to the rule that the announcement of findings of fact and conclusions of law constitutes the decision of the court within the meaning of the code requiring a motion for a new trial to be filed within three days after the decision is rendered. Kalivoda v. Kalivoda, 148 Kan. 238, 240, 80 P.2d 1050. When this matter was presented and urged by plaintiffs before the trial court, the court denied the motion, but not on this ground, stating:

'Gentlemen, on these motions, I naturally thought I was rendering judgment at that time when the motion came on for me to render judgment on my findings, and conclusions of law, but under that theory, there wasn't any judgment rendered until today.'

It is apparent that it was not the understanding of the trial court that his findings and conclusions filed April 21, were to be final and in effect the filing date on those findings was canceled. The trial court is the one to say whether its preliminary findings are to be final. They and the conclusions, when complete, constitute the decision of the court, and the trial judge is the one to say when his decision is rendered. Kalivoda v. Kalivoda, supra.

In the instant case, the court said 'There wasn't any judgment rendered until today'. (May 14, 1952.) This court long ago announced and has repeatedly followed the rule that within the same term at which a judgment was rendered the trial court has absolute power over it, and may modify, alter, change or vacate it, in whole or in part. State ex rel. v. Langmade, 101 Kan. 814, 168 P. 847; Rasing v. Healzer, 157 Kan. 516, 142 P.2d 832; In re Estate of Ellis, 168 Kan. 11, 26, 210 P.2d 417. If we were to hold that the trial court intended that its findings and conclusions, filed April 21, were to be final and amounted to a decision, the foregoing quoted language of the court was tantamount to vacating such decision, and refiling its findings and conclusions, and entering judgment on May 14, 1952. We will, therefore, consider the city's motion for new trial as filed within the statutory time.

The city complains that plaintiffs failed to sustain the burden of showing, by a preponderance of the evidence, that their land was damaged, and that their evidence was based on speculation and conjecture. After reviewing the record of more than 100 pages of narrated testimony covering the question of damages, we are unable to agree with the city's contention. The trial court made somewhat exhaustive findings of fact relating to the mentioned question, finding that after the construction of the levee, all water which would normally flow over and cover the land east of the levee was held back by the levee on the land west of the levee and east of the high bank of the west side of the Whitewater River; that the construction of the levee narrowed the river valley so that the water would be come deeper, and would flow with higher velocity in times of heavy rainfall and floods, which would cause more washing or scouring of the land and would hold it back until it could not all escape through the channel of the river unless it became high enough to flow over the Frisco railroad embankment or grade, and at such times the fall of the water over the grade washed the ballast of the railroad track out on the land of plaintiff Wilson and caused more washing and scouring of the land,...