Great Lakes Pipe Line Co., Application of

• Court: Kansas Supreme Court
• Writing for the Court: Leonard O. Thomas, of Kansas City, argued the cause, and Arthur J. Stanley, Arthur J. Stanley, Jr.; THIELE
• Citation: Great Lakes Pipe Line Co., Application of, 211 P.2d 70, 168 Kan. 100 (Kan. 1949)
• Decision Date: 12 November 1949
• Docket Number: No. 37639,37639
• Parties: Application of GREAT LAKES PIPE LINE CO. GREAT LAKES PIPE LINE CO. v. CARSON et al.

Page 70

211 P.2d 70

168 Kan. 100

Application of GREAT LAKES PIPE LINE CO GREAT LAKES PIPE LINE CO. v. CARSON et al.

No. 37639.

Supreme Court of Kansas.

Nov. 12, 1949.

Syllabus by the Court.

In the trial of an appeal to the district court from the award of appraisers made in a proceedings in eminent domain, under agreement the jury did not return a general verdict but answered questions submitted upon which the trial court rendered judgment, and from which judgment the Company invoking the power of eminent domain appealed to this court. The record examined, and held:

The trial court did not err

1. The determining the damage to the lands of the landowner not included in the right of way condemned.

2. In determining the value of the right of way taken.

3. In holding that the damages for the right of way and to the lands not taken were not excessive.

4. In allowance of interest on amount of damage from the date of condemnation until the judgment is paid.

Ralph M. Jones, of Kansas City, Missouri, argued the cause, and Willard L. Phillips, of Kansas City, was with him on the briefs for the appellant.

Leonard O. Thomas, of Kansas City, argued the cause, and Arthur J. Stanley, Arthur J. Stanley, Jr., J. E. Schroeder and Lee E. Weeks, all of Kansas City, were with him on the briefs for the appellees.

THIELE, Justice.

This was a proceedings for the exercise of the right of eminent domain. The Great Lakes Pipe Line Company, a corporation, hereafter referred to as the Company, appeals from a judgment fixing the damages of the landowners.

In its petition for exercise of the right of eminent domain the Company stated it desired to acquire a thirty foot right of way to construct pipe line or lines paralleling and adjacent to its two existing lines 'to be buried at least two feet under the surface of the ground' over lands owned by Charles E. Scott, and which need not be described. On October 8, 1945, the district court found that the Company had the power of eminent domain and that acquisition of the right of way was necessary to the Company's corporate purposes, and it appointed appraisers, who filed their report fixing the damages to the landowners at $1,800. On November 17, 1945, the Company filed its appeal from the appraisement and at the same time paid the court costs and appraisers' fees and deposited the sum of $1,800 with the clerk of the court under an order of the court that that sum should be held by the clerk pending final determination of the appeal and the further order of the court. Before the appeal was tried Scott died, and an administrator of his estate was appointed, the action was revived, and his administrator substituted. There is no controversy as to any of the above matters. No question is raised as to the Company's right to appeal under the circumstances and that question will not be discussed.

When the appeal was heard in the district court each party offered proof of the value of the land taken and of the damage to the land not taken. There was no dispute but that the land taken amounted to 1.894 acres. It was stipulated that there were 86 acres in the field involved. At the close of the evidence it was agreed the court should not submit the cause to the jury for a general verdict but should submit special questions and then render such judgment as was proper. The court then instructed the jury and submitted questions which the jury answered. Upon the Company's request the jury was returned to make a more definite answer to question No. 3. The questions and answers were as follows:

'1. What was the reasonable market value per acre of the 86-acre tract of land referred to in the evidence in this case as of the month of October, 1945? Answer: $400.00 per acre.

'2. What was the reasonable market value of the right of way, described in the evidence in this case, acquired by the plaintiff Great Lakes Piep Company, as of the month of October, 1945? Answer: $1,200.00.

'3. What factors, disclosed by the evidence, do you take into consideration when fixing the market value of the right of way, as answered in question No. 2?

'First Answer: (Reasonable market value as of October, 1945. Additional $400.00 granted due to type of easement.)

'Revised Answer: Reasonable market value of approximately two acres of land involved as of October, 1945. Also character of easement granted.

'4. Do you find from the evidence that the remainder of the tract not taken by the condemnation proceedings was damaged as a result of the taking of the right of way by the plaintiff Great Lakes Pipe Line Company? Answer: Yes.

'5. If you answer Question No. 4 yes, then state the amount of said damage. Answer: $35.00 per acre.

'6. If you answer Question No. 4 yes, then state specifically in what manner the taking of the right of way caused the remainder not taken to depreciate in value. Answer: Rendered less desirable from the standpoint of agricultural use and resale value due to type of easement.

'7. Was the highest and best use of this tract of ground for which it had a market value as of October, 1945,

'(a) Truck garden use?

'(b) Industrial use? Answer: Truck gardening.'

The Company's motion, that the answers Nos. 2, 3, 5, and 6, be set aside as contrary to the evidence, unsupported by the evidence or the result of bias, prejudice and passion, was denied except that answer 2 was reduced to $757.64. The Company's motion for a new trial was likewise denied. The landowners' motion that they be allowed interest from October 8, 1945 (date of the order allowing the petition) to the date the judgment is paid, was allowed. Judgment was rendered against the Company for $3,697.64 and interest from October 8, 1945, and for costs. In due time the Company perfected its appeal from the judgment and adverse rulings. In its abstract it specifies error in the particulars hereafter discussed.

The Company's first contention is there is no evidence to support the jury's answer No. 5 that the damage to the land not taken was $35 per acre. It directs our attention to Kiser v. Phillips Pipe Line Co., 141 Kan. 333, 41 P.2d 1010, and to Kennedy v. Great Lakes Pipe Line Co., 149 Kan. 48, 86 P.2d. 521, and argues that the evidence as to damage to land not taken was limited to damages to the land for industrial purposes; that the jury by its answer No. 7 found its highest use was for agricultural purposes and there is no evidence as to damage for that use. In the Kiser case the jury, answering special questions, found the amount of damages to items that were temporary and to real estate which was permanent, but it also found that the damages to the real estate was temporary. This court held that in view of the latter answer, there could be no recovery for the permanent damages. In the Kennedy case a similar situation was disclosed. The jury found the amount of damages to crops and also to the land, but by another finding found the damage to the plaintiff was temporary. This court eliminated the damage to the real estate. In our opinion these cases do not control here. There is no finding that the damage is temporary, and so far as the landowners are concerned their evidence proved permanent and not temporary damages. It is true that witnesses were questioned at length about the most advantageous use to which the lands could be put, and those called by the landowners expressed an opinion that it was for industrial purposes, but without reciting the testimony, they also testified to the present use of the lands for farming purposes. The Company's witnesses stated the most advantageous use was for agricultural purposes and while they expressed the opinion the right of way did not damage the remainder of the land, that testimony was disputed, or, on cross examination, was shown to be arrived at without regard to all factors involved. The landowners' testimony as to damage to land not taken was from $40 to $50 per acre. Under instructions of which no complaint was made, the jury had a right to take into consideration that while the pipe lines had to be laid two feet below the surface, the Company was under no obligation to maintain them in that condition. The jury could also consider that although the two lines previously laid by the Company had been so installed, by reason...