Gnadt v. Durr

• Decision Date: 04 March 1972
• Docket Number: No. 46235,46235
• Citation: Gnadt v. Durr, 208 Kan. 783, 494 P.2d 1219 (Kan. 1972)
• Parties: Henry GNADT et al., Appellants, v. Eugene B. DURR, County Engineer, et al., Appellees.
• Court: Kansas Supreme Court

Page 1219

494 P.2d 1219

208 Kan. 783

Henry GNADT et al., Appellants, v.Eugene B. DURR, County Engineer, et al., Appellees.

No. 46235.

Supreme Court of Kansas.

March 4, 1972.

Syllabus by the Court

1.The provisions of K.S.A.1970 Supp. 19-1427 are construed as imposing the cost of replacing all lost government survey corners upon the county or township; and the county surveyor, subject to the approval of the county commissioners, is required to apportion the actual cost of an official survey requested pursuant to K.S.A. 19-1423, exclusive of costs incurred to establish lost government survey corners, if any, equitably among the landowners whose lands are situated on the boundary line, according to the respective benefits received, and the reestablishment of lost government survey corners is not a condition precedent to the imposition of such costs upon the adjacent landowners.

2.When a statute is susceptible of more than one construction it must be given that construction which, when considered in its entirety, gives expression to its intent and purpose, even though such construction is not within the strict literal interpretation of the statute.

3.In order to ascertain the legisaltive intent courts are not permitted to consider only a certain isolated part or parts of an act but are required to consider and construe together all parts thereof in pari materia.

4.When the interpretation of some one section of an act according to the exact and literal import of its words would contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the strict letter of the law.

5.The establishment of a boundary line by an official survey does not deprive a property owner of land because official surveys merely establish boundary lines, and do not determine title to land under controversy.

6.The results of an official survey are not the criterion upon which to determine whether benefits are conferred upon the adjacent landowners.The boundary line established by an official survey is of equal benefit to adjacent landowners having a common boundary within the statutory meaning of the term 'benefit' because it establishes a common survey line.Bruce C. Harrington, of Hiatt & Spurgeon, Topeka, argued the cause and was on the brief for appellants.

Bill Baldock, County Atty., argued the cause and was on the brief for appellees.

SCHROEDER, Justice:

This is an action pursuant to K.S.A. 60-907(a) to enjoin the county officials of Wabaunsee County, Kansas, from assessing one-half of the costs of a legal survey to the plaintiffs.The trial court held K.S.A.1970 Supp. 19-1427 required the assessment of one-half of the costs of such survey against the plaintiffs.

The only question on appeal is the construction of K.S.A.1970 Supp. 19-1427.

At the pleading stage of the case both the appellants(plaintiffs below) and the appellees(defendants below) filed motions for summary judgment on facts which are not in dispute.

On the 8th day of December, 1969, real estate owned by the appellants was the subject of a legal survey initiated by the county engineer of Wabaunsee County, Kansas.The survey was requested by Walter Mathies, an adjacent landowner to the appellants' property, pursuant to K.S.A. 19-1423.No appeal was taken from such survey by the appellants as authorized by K.S.A. 19-1426.

On the 9th day of March, 1970, the county commissioners of Wabaunsee County, Kansas, under the authority of K.S.A. 1970 Supp. 19-1427, assessed one-half of the costs of such survey, or $392.75, against the appellants whose lands were situated on the boundary line.

On the 4th day of May, 1970, the appellants filed this action in the district court of Wabaunsee County, Kansas, seeking to enjoin the county officials of Wabaunsee County from assessing the costs of such survey against them.

Thereafter, on the 12th day of June, 1970, the district court overruled the appellants' motion for summary judgment and sustained the appellees' motion for summary judgment, thereby holding as a matter of law that the appellants were required to pay one-half of the costs of such survey.The appellants have duly perfected an appeal to this court from such adverse judgment.

In pertinent part K.S.A.1970 Supp. 19-1427, provides:

'The cost of replacing all lost government survey corners shall be assessed to the county or township.The county surveyor, upon replacing a government survey corner shall notify the county commissioners of the cost thereof; and such costs shall be paid from the county or township road fund, as determined proper by the county commissioners.The county surveyor, subject to the approval of the county commissioners, shall apportion the actual cost of the survey, after the government corners are reestablished, equitably among the landowners whose lands are situated on the boundary line, according to the respective benefits received: . . .'(Emphasis added.)

Attached to the appellants' motion for summary judgment is an affidavit of the appellants' attorney incorporating a letter received from Eugene B. Durr, the county engineer of Wabaunsee County, stating that 'no government corners were reestablished' in making the legal survey.The recital of this fact gives rise to the controversy between the parties.

Both parties premise their argument on the fact that the survey was made from already established and existing government corners.

The appellants contend, since no government corners were reestablished, there exists no authority under 19-1427, supra, for apportioning the costs of the survey to the appellants simply because their lands were situated on the boundary line.The appellants argue there is no method of payment provided by statute where lost corners have not been reestablished.

We have been cited to no Kansas case in point nor has our research disclosed any.Two Illinois cases cited to this court do not deal with the point in question.

It is a fundamental rule of statutory construction, to which all others are subordinate, that the purpose or intent of the legislature governs when that intent can be ascertained from the statute, even though words, phrases or clauses at some place in the statute must be omitted or inserted.This rule, stated in various forms, has been applied by this court throughout its history.(Hunziker v. School District, 153 Kan. 102, 109 P.2d 115, and authorities cited therein; and Wolf v. Mutual Benefit Health & Accident Association, 188 Kan. 694, 366 P.2d 219.)

This court has held when the interpretation of a statute(not penal in nature) according to the exact and literal import of its words would defeat the manifest purpose of the legislature in its enactment, it should be construed according to its spirit and reason disregarding, as far as may be necessary, the strict letter of the law.(Wolf v. Mutual Benefit Health & Accident Association, supra, and authorities cited therein.)

When a statute is susceptible of more than one construction it must be given that construction which, when considered in its entirety, gives expression to its intent and purpose, even though such construction is not within the strict literal interpretation of the statute.(Shumaker v. Kansas State Labor Dept., 154 Kan. 418, 118 P.2d 550;andBarten v. Turkey Creek Watershed Joint District No. 32, 200 Kan. 489, 438 P.2d 732.)

The appellants seek to isolate not only 19-1427, supra, from the enactment by the legislature authorizing legal surveys, but also isolate one sentence in the statute and attempt to give it a strained literal interpretation.Fundamental rules of statutory construction to be applied in this situation are well stated in State v. Sumner, 169 Kan. 516, 219 P.2d 438, where the first three syllabi of the court read as follows:

'In order to ascertain the legislative intentcourts are not permitted to consider only a certain isolated part, or parts, of an act but are required to consider and construe together all parts thereof in pari materia.

'It is the duty of courts to reconcile various provisions of an act in order to make them consistent, harmonious and sensible if that can be done without doing violence to plain provisions therein contained.

'When the interpretation of some one section of an act according to the exact and literal import of its words would contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the strict letter of the law.'

G.S.1949, 19-1427 (the source of prior law for K.S.A.1970 Supp. 19-1427, regarding...