Gault v. Board of County Com'rs of Johnson County

• Citation: 208 Kan. 578,493 P.2d 238
• Decision Date: 22 January 1972
• Docket Number: No. 46192,46192
• Parties: W. E. GAULT and Carolyn B. Gault, husband and wife, Appellees, v. The BOARD OF COUNTY COMMISSIONERS OF JOHNSON COUNTY, Kansas, Appellant.
• Court: Kansas Supreme Court

Page 238

493 P.2d 238

208 Kan. 578

W. E. GAULT and Carolyn B. Gault, husband and wife, Appellees, v. The BOARD OF COUNTY COMMISSIONERS OF JOHNSON COUNTY, Kansas,

Appellant.

No. 46192.

Supreme Court of Kansas.

Jan. 22, 1972.

Syllabus by the Court

1. Findings of fact of a district court will not be set aside on appellate review where they are supported by substantial competent evidence.

2. Where the appraisers' award in a condemnation proceeding is paid into the office of the clerk of the district court before a transfer of the real estate, the conveyance does not include the land taken by the condemnation proceeding, or the proceeds therefrom, in the absence of such a specific provision in the deed.

3. Whether the properties are sufficiently similar that the sale prices will have some bearing upon the value of the property in a condemnation proceeding, must be left largely to the sound discretion of the district court, and this court should interfere only when its discretion is abused.

4. In a condemnation proceeding, the sale price of comparable property sold under a binding contract for a deed may be used to establish value of the property to be taken.

5. The power to modify orders entered as the result of a pretrial conference rests in the sound discretion of the district court.

6. Attorney fees and expenses of litigation, other than court costs, incurred by a prevailing party in an action, are not chargeable as costs against the defeated party, in the absence of a clear and specific statutory provision therefor, and our eminent domain statute (K.S.A. 26-501, et seq.) contains no such specific provision.

Maurice R. Hubbard, Olathe, argued the cause, and James H. Bradley, Olathe, was with him on the brief for appellant.

Park McGee, of Haskin, Noonan, McGee & Hinkle, Olathe, argued the cause and was on the brief for appellees.

FATZER, Chief Justice:

This is an appeal by the condemner from a jury verdict increasing the appraisers' award in a condemnation proceeding.

The pertinent facts may be stated as follows: The landowners-appellees and cross-appellants owned a quarter section of land some 600 feet north of the city limits of the city of Gardner, Johnson County. On July 1, 1968, the Board of County Commissioners of Johnson County proceeded to acquire by eminent domain easements for the widening and improvement of a county road. The project commenced at the nothern boundary of the city of Gardner and extended in a northernly direction for about three miles.

The land to be taken from the appellees' quarter section consisted of a strip fronting the existing road. It was 80 feet in width at the southern boundary, increasing to 100 feet, and then decreasing to 90 feet at the northern boundary. The total distance was 2,640 feet, and 4.18 acres were to be acquired.

The appraisers awarded the appellees $5,116 for the 4.18 acres taken. They were not satisfied with the award and on appeal to the district court, a jury returned a verdict in favor of the landowners in the amount of $14,000, and judgment was entered on the verdict. The condemner has appealed. The appellees have cross-appealed from the order of the district court denying them the right to recover reasonable attorney fees.

The appellant first contends that W. E. Gault and Carolyn B. Gault, the original landowners, were not the real parties in interest to appeal from the appraisers' award, and that the district court erred in overruling the condemner's motion to dismiss the appeal. More detailed facts are presented on this issue.

The condemner deposited with the clerk of the district court, in the original eminent domain proceeding, the amount of the landowners' award. This was done on August 16, 1968. A general warranty deed bearing the date of August 12, 1968, was executed by the original landowners conveying the quarter section in question to Western Lumber & Building Supply, Inc. The deed contained the usual covenants of warranty, but did not contain any reservations or exceptions other than a recital as to encumbrances. It was recorded in the register of deeds office of Johnson County on August 16, 1968, at 4:19 o'clock p. m.

The record states:

'Plaintiff, W. E. Gault, testified at the hearing on the motion to dismiss that he acquired title to the real property in May or June of 1963. . . . That he sold the property to Western Lumber and Building Supply, Inc., of which his father, Ross Gault, was the only stockholder as of August 12, 1968. He and his wife signed the deed as grantees before the Notary Public on August 16, 1968, and that he, himself, recorded it at the Register of Deeds Office. He was president of Western Lumber and Building Supply, Inc., but that he did not own any stock in the company.'

In overruling the condemner's motion to dismiss, the district court stated:

'The Court further finds that on the 16th day of August, 1968, during the morning hours, the condemnor, Board of County Commissioners of Johnson County, Kansas, paid into the hands of the Clerk of the District Court of Johnson County, Kansas, the amount of the award of the appraisers;

'That during the afternoon hours of August 16, 1968, the plaintiff in this action, being Case No. 42113, plaintiffs W. E. Gault and Carolyn B. Gault, husband and wife, executed a deed to Western Lumber & Building Supply, Inc., to the northeast quarter of Section 23, Township 14, Range 22, in Johnson County, Kansas, conveying said real property to Western Lumber & Building Supply, Inc., which deed was delivered to the vendee, Western Lumber & Building Supply, Inc., at 4:14 p. m. on August 16, 1968.

'The Court determines, as a matter of law, that the taking by the Board of County Commissioners of Johnson County, Kansas, occurred as of the time of paying the amount of the appraisers award to the Clerk of the Court, and at said time title to the property so taken, or interest therein, the interest easement, I should say, therein, vested in the Board of County Commissioners, and as a consequence thereof, any conveyance of the real property would be subject to the taking by the Board of County Commissioners of Johnson County, Kansas.

'The Court further determines as a matter of law, that the plaintiffs, Gault, did not and could not convey that which was taken from them in the condemnation action.

'The Court further determines that their right to appeal from the award vested in Gaults at the time of the taking and that there has been no evidence of any transfer of interest in their right to appeal from the award of the appraisers in this case, and, accordingly, the plaintiffs, Gault, are proper parties to determine the correctness of the award of the appraisers in this case.

'Counsel's attention is respectfully directed to K.S.A. 60-225, Subsection c, as amended by the laws of Kansas for 1965.

'accordingly, the defendant's motion is considered and overruled.'

On November 6, 1969, the condemner's motion to vacate and set aside the judgment was heard by the district court. At the hearing, evidence was presented which would tend to establish the deposit of the award by the condemner was made sometime after 3:24 o'clock p. m. August 16, 1968.

The district court, in overruling the condemner's motion to vacate and set aside the judgment, stated in part:

'THE COURT: The Court determines that even though the condemnor now contends that the money was paid into the office of the Clerk of the District Court of Johnson County, Kansas, sometime after 3:24 p. m. on August 16, 1968, there is no showing by the condemnor that the money was not paid in and the taking of the easement consummated in advance or before the delivery of the deed from W. E. Gault to Western Lumber & Building Supply, Inc., and accordingly, determines as a matter of law, that the taking by the Board of County Commissioners of Johnson County, Kansas, occurred as of the time of the paying of the amount of the appraisers award to the Clerk of the Court, and further determines that at the time of paying said appraisers award into the office of the Clerk of the Court, title to the property so taken or interest therein, vested in the Board of County Commissioners and consequently any conveyance by the landowners, W. E. Gault and his wife, Carolyn B. Gault, effected after that time, would be subject to the taking of the easement by the Board of County Commissioners of Johnson County, Kansas. The Court further determines that the plaintiffs, W. E. Gault and Carolyn B. Gault, could not convey that which had been taken, that which had previously been taken from them by condemnation. The Court further determines that the landowners right to appeal from the award vested in the landowners; that is, W. E. Gault and Carolyn B. Gault, at the time of the taking, and that consequently they are proper parties to determine the correctness of the award of the appraisers in this case. The Court further determines as a matter of law, that the measure of damages, being the difference of the entire property before the taking, in no way effects the landowners' right to prosecute the appeal from the award of the appraisers. Accordingly, the condemnor's motion is overruled.'

This court finds no basis for disturbing the district court's finding the money was paid in and the land taken by the condemner before the title passed by the warranty deed. Findings of fact of a district court will not be set aside on appellate review where they are supported by substantial, competent evidence, although such evidence may be conflicting. (Isis Foods, Inc. v. Mo-Kan Enterprises, Inc., 205 Kan. 203, 468 P.2d 113.)...