Glover v. State Highway Commission of Kansas

• Decision Date: 05 March 1938
• Docket Number: 33580.
• Citation: 77 P.2d 189,147 Kan. 279
• Parties: GLOVER v. STATE HIGHWAY COMMISSION OF KANSAS. [*]
• Court: Kansas Supreme Court

77 P.2d 189

147 Kan. 279

GLOVER v. STATE HIGHWAY COMMISSION OF KANSAS. ^[*]

No. 33580.

Supreme Court of Kansas

March 5, 1938

Syllabus by the Court.

Under statute providing that code of civil procedure should not affect condemnation proceedings, civil code did not apply to preliminary proceedings and appraisement under general condemnation law, but did apply to action in district court after giving and approval of notice of appeal and bond. Gen.St.1935, 26-101, 26-102, 60-3823.

An appeal could be taken by State Highway Commission from district court's judgment rendered on appeal from an appraisement and award of commissioners in condemnation proceeding conducted under general condemnation law. Gen.St.1935, 26-101, 26-102, 60-3302.

The statute relating to appeals from justice of the peace courts and other courts having justice of the peace jurisdiction was designed to apply to appeals from those courts, and was not intended to apply to all classes of appeals to district court. Gen.St. 1935, 61-1001 to 61-1003a.

The purpose of the general condemnation law was to make procedure uniform in all cases to which it applied. Gen.St.1935 26-101, 26-102.

The statute providing that a property owner appealing from appraisement and award of commissioners in condemnation proceeding should give a bond for costs of appeal did not require that bond should be for all costs of action irrespective of who was adjudged to pay them. Gen.St.1935 26-101, 60-104, 60-2401.

That bond given by property owner appealing from appraisement and award of commissioners in highway condemnation proceeding was limited to judgment and costs which might be rendered against him and was also limited to penal sum of $50 did not render it insufficient so as to deprive district court of jurisdiction of action initiated by appeal. Gen.St.1935 26-101, 26-102.

In highway condemnation proceeding in district court, admission of evidence concerning annoyance to property owner and his family and damages to his residence because of manner of breaking up old pavement in reconstructing highway was error since damages caused after taking of property could not be recovered in condemnation proceeding. Gen.St.1935, 26-102.

In highway condemnation proceeding in district court, admission of evidence that at some remote future time property owner's land, which was then five miles from city, might be subdivided into half acre and acre tracts and sold advantageously as suburban property, was error. Gen.St.1935, 26-102.

In highway condemnation proceeding in district court, admission of evidence that property owner's land not taken in condemnation proceeding had been damaged by change of grade in reconstruction of highway about 195 feet from his residence was error. Gen.St.1935, 26-102.

An alleged error in rejection of defendant's testimony would not be considered on appeal, where defendant did not offer evidence by affidavit or otherwise on hearing of its motion for new trial Gen.St.1935, 60-3004.

In highway condemnation proceeding in district court, admission of evidence concerning value of trees growing on part of land taken, separate and apart from value of land, was error. Gen.St.1935, 26-102.

1. An appeal lies to this court from the judgment of a district court upon the trial of an action resulting from the appeal to that court of an appraisement and award of commissioners in a condemnation proceeding conducted under G.S.1935, 26-101, 26-102.

2. The bond given by the property owner in a condemnation proceeding, conducted under G.S.1935, 26-101, 26-102, to appeal from the appraisement and award of the commissioners to the district court, is examined, and it is held to be sufficient to give the district court jurisdiction of the action initiated therein by such appeal.

3. The State Highway Commission commenced condemnation proceedings of a strip of land to enable it to widen and otherwise improve a state highway. The landowner, being dissatisfied with the appraisement and award of the commissioners, appealed to the district court, where the action to determine the amount due him was tried. Held, upon the trial of such action, it was error:

(a) To receive evidence as to the annoyance to plaintiff and his family and damages to his residence resulting from the manner in which the work of improving the highway later was done;

(b) To receive evidence that at some time in the remote future plaintiff's land might be divided into half acre and acre tracts and sold advantageously as suburban property;

(c) To receive evidence that the part of plaintiff's land not taken was damaged by a change of grade made by defendant in its highway; and

(d) To receive evidence respecting the value of trees, growing on that part of the land taken, separate and apart from the value of the land.

Appeal from District Court, Wyandotte County, Division No. 4; C. A. Miller, Judge.

Proceeding by J. N. Glover against the State Highway Commission of Kansas, wherein J. N. Glover appealed to the district court from the award of the commissioners in a highway condemnation case. Judgment for plaintiff, and defendant appeals.

Reversed, with directions.

HUTCHISON, J., dissenting in part.

Lester M. Goodell, Asst. Atty. Gen., Robert Osborn, of Stockton, Woodrow B. Morris, of Oxford, C. C. Casey, of Topeka, Joseph W. Menzie, of Manhattan, and Robert G. Lindsay, of Kansas City, for appellant.

A. J. Herrod, of Kansas City, for appellee.

The court also considered briefs of counsel and amici curiae submitted upon the motion for rehearing, and upon the resubmission of Russell v. State Highway Comm., 146 Kan. 634, 73 P.2d 29.

HARVEY Justice.

This is an appeal from a judgment in a state highway condemnation case. In March, 1936, the State Highway Commission, desiring to widen and improve a portion of the state highway system, known locally as the "Reidy Road," in Wyandotte county, filed its petition, in due form, for the appointment of appraisers for the taking of a strip of land 50 feet wide and 363 feet long belonging to J. N. Glover and adjoining the then right of way of the state highway. Commissioners were appointed, who gave notice, as provided by law, and who made an appraisement, for the land taken $105, for fence $10.20, for trees $30, and for yard damage $50, making a total award of damages of $195.20, and filed their report with the clerk of the district court, May 12, 1936. On May 28, 1936, being dissatisfied with the appraisement, J. N. Glover filed with the clerk of the district court a notice of appeal and a bond in the penal sum of $50, signed by himself and two sureties, residents of the county, which recited the proceedings taken and the appraisement made, that he felt himself aggrieved thereby, and appealed therefrom to the district court of Wyandotte county, which bond concluded: "Now, therefore, if the said J. N. Glover will prosecute his appeal to effect and without unnecessary delay, and if a judgment rendered against him on the appeal will satisfy such judgment and costs, then this obligation to be null and void, otherwise to be and remain in full force and effect."

This bond was approved by the clerk of the district court, and the proceeding was docketed as a civil action. Thereafter, and before the trial of the action in the district court, the State Highway Commission filed a motion to dismiss the appeal, for the reasons: (1) That it was not taken as provided by law, in that a bond conditioned by law was

not filed; and (2) that the owner of the land did not, within thirty days, file a bond for the cost of such appeal, as required by law, in that he filed a bond for a specific amount, to wit, $50. This motion was considered by the court and overruled. Thereafter the action was tried to a jury and resulted in a judgment for Glover against the State Highway Commission for $1,500. From this judgment the State Highway Commission has appealed and contends: (1) That the appeal bond filed by Glover did not give the district court jurisdiction of the action, (2) that the court erred in admitting evidence as to damages, and (3) in refusing to receive certain evidence offered. We shall speak of the landowner as plaintiff and of the State Highway Commission as defendant.

Before considering questions argued by defendant, as appellant here we must consider a question raised by plaintiff, as appellee here, namely, that there is no appeal from the district court to this court in a condemnation proceeding conducted under G.S.1935, 26-101 and 26-102. In support of appellee's motion to dismiss this appeal on that ground it was argued that condemnation under these sections is a special proceeding or inquest (State Highway Commission v. Griffin, 132 Kan. 153, 155, 294 P. 872; Todd v. Atchison, T. & S. F. R. Co., 134 Kan. 459, 461, 7 P.2d 79); that the Legislature was under no constitutional duty to provide for any appeal from the award of the commissioners (20 C.J. 1091; Central Branch Union Pac. R. Co. v. A., T. & S. F. R. Co., 28 Kan. 453, 461); and that it has, in fact, provided only for an appeal to the district court. Norman v. Consolidated Cement Co., 127 Kan. 643, 274 P. 233; National Bank of Topeka v. State, 146 Kan. 97, 68 P.2d 1076; and G.S. 1935, 60-3823, are cited and principally relied upon, although other cases and other sections of the statute having a less direct bearing upon the question also are cited. The Norman Case construed the workmen's compensation law as rewritten in 1927 (chapter 232, Laws 1927). This set up an entirely new machinery for handling a compensation case from that previously existing. There was a clear intention to create a procedure applying to that class of cases only, and to make it complete within itself, and one of the things to...