Ives v. Kansas Turnpike Authority

• Decision Date: 24 January 1959
• Docket Number: No. 41178,41178
• Citation: 334 P.2d 399,184 Kan. 134
• Parties: Nelson IVES and Robert Ives, Appellees, v. KANSAS TURNPIKE AUTHORITY of the State of Kansas, Appellant.
• Court: Kansas Supreme Court

Page 399

334 P.2d 399

184 Kan. 134

Nelson IVES and Robert Ives, Appellees, v. KANSAS TURNPIKE AUTHORITY of the State of Kansas, Appellant.

No. 41178.

Supreme Court of Kansas.

Jan. 24, 1959.

Syllabus by the Court

1. Ordinarily, and as a general proposition, actual contiguity or physical connection of tracts is essential in order to create a unit as a basis of awarding damages in condemnation where a part or all of only one of the tracts is taken.

2. Actual contiguity or physical connection, however, is not a conclusive test. While actual contiguity or, if physically separated, the distance between the tracts, is an important element to be considered on the question of unity of use, nevertheless, in many instances, depending upon the facts of the particular case, integrated use becomes the test whether two or more tracts are to be considered as a unit. In other words, separation of the tracts is an evidentiary fact bearing upon, but not necessarily determinative of, the ultimate issue.

3. Where two or more tracts of land in proximity and under the same ownership are not contiguous or physically connected, even though separated by privately-owned land of another, they may be considered as a unit for the purpose of assessment of damages despite the taking is from only one of the tracts, provided the use to which they are applied is so inseparably connected that the taking from one necessarily and in fact injures the other.

4. The question of unity of use of two or more tracts is a question of fact to be determined upon the facts and circumstances of the particular case, and is not to be based upon fanciful claims, speculation or conjecture, and in such cases the burden of proof is upon the landowner to prove his claim.

5. An 80-acre tract and a 160-acre tract, located one mile distant at their nearest points, were under the same ownership. The Kansas Turnpike Authority, under its power of eminent domain, took some 45 acres from the 80-acre tract. Nothing was taken from the 160-acre tract. The undisputed facts were that for over seventeen years, and at the time of the taking, the two tracts were farmed and operated as 'one 240-acre farm unit.' All as fully set forth in the opinion, it is held:

The fact the two tracts are not contiguous does not, as a matter of law, prevent the entire farm unit of 240 acres from being considered in the assessment of damages, and under the undisputed facts of this case the damages sustained by reason of the taking are properly to be considered on the basis of the two tracts as a unit rather than limited to the 80-acre tract.

6. If the decision in the case of Leavenworth, N. & S. Ry. Co. v. Wilkins, 45 Kan. 674, 26 P. 16, be construed as authority for the rule that contiguity of tracts is essential in every case where the question of unity presented by this appeal is involved, it is to that extent disapproved and overruled.

Ernest J. Rice, Topeka, argued the cause, and Robert M. Cowger, Topeka, was with him on the briefs, for appellant.

Philip H. Lewis, Topeka, argued the cause, and T. M. Lillard, O. B. Eidson, James W. Porter and Charles S. Fisher, Jr., Topeka, were with him on the briefs, for appellees.

PRICE, Justice.

Two tracts of land--one of 80 acres and the other of 160 acres--lying one mile apart, were owned by the same person. The Kansas Turnpike Authority took, by condemnation, some 45 acres from the 80-acre tract. None was taken from the 160-acre tract. An award was made solely with reference to the 80-acre tract. The owner, and his son, who operated both tracts, appealed from the award, contending that as the two tracts were, and had been, operated as a single farm unit, the assessment of damages should be based upon the entire unit rather than limited to the 80-acre tract from which the actual taking was had.

By agreement of the parties, and under the authority of G.S.1949, 60-2704 and 60-2902, the court, in advance of trial as to the amount of damages, proceeded to determine the question:

'Whether the damages sustained by the appellants by reason of the said condemnation and taking should be considered on the basis of a 240 acre farm unit, or on the basis of an 80 acre farm unit.'

There is no dispute as to the facts, most of which were stipulated. Included in the 'basic stipulation' is the statement that for more than seventeen years the two tracts in question had been farmed as 'one 240 acre farm unit.' At the conclusion of the hearing the court held:

'a. The land taken by condemnation, consisting of 45.14 acres, was all taken from the above described tract consisting of eighty acres.

'b. The entire 240 acres, above described, owned and farmed by appellants, constituted a single farm unit at the time of the taking by condemnation.

'c. That such total farm unit, consisting of 240 acres, shall be considered in the determination of the amount allowable to appellants as compensation and damages by reason of the taking by condemnation, including the damages allowable for damage to the lands remaining after the taking by condemnation.

'd. That the fact that the two tract (80 acres and 160 acres) constituting the total farm unit were physically separated does not, as a matter of law, prevent the entire farm unit of 240 acres from being considered in the determination of the amount allowable to appellants as compensation and damages by reason of the taking by condemnation, including the amount allowable for damage to the lands remaining after the taking by condemnation.'

The Kansas Turnpike Authority has appealed, and the sole question is whether two physically separated tracts of land, owned by the same person, and operated as a single farm unit, may be joined for the purpose of assessing damages in condemnation when the actual taking is from only one tract. In other words--is the award to be limited to the tract from which the actual taking was had--or is it to be based upon damage to the two tracts considered as a single unit?

Despite the stipulation of the parties that for more than seventeen years the two tracts had been operated as one 240-acre farm unit, it is felt that in order to convey the full picture of this matter the facts should be set out in some detail. As there is no dispute concerning them, we quote from the 'factual analysis' contained in the brief of the landowner and his son who operated the farm:

'1. The 240 acre farm involved herein was located a short distance east of Topeka, Kansas.

'2. The farm was wholly owned by Nelson Ives and totally operated by Robert Ives.

'3. This farm consisted of two tracts or acreages. One was an 80 acre tract. The other was a 160 acre tract.

'4. The two tracts, prior to the condemnation, were both located on the same improved (graveled) all-weather road, commonly known as the East 21st Street Road. This road is an extension of 21st Street in the City of Topeka. The length of the 80 acre tract ran along the north side of 21st Street road. The 160 acre tract was one mile easterly from the 80 acre tract, and was located on the south side of the same road. Hence, each tract had one-half mile of frontage on the East 21st Street road.

'5. In addition to the East 21st Street road, access to the 80 acre tract was available from a county road (Croco Road), intersecting with the East 21st Street road; and running along the west side of the 80 acre tract. Township roads also ran along both the west and east sides of the 160 acre tract, these roads intersecting the East 21st Street road at the northwest and the northeast corners of the 160 acre tract.

'6. Two gates and a machinery entrance were maintained along the south side of the 80 acre tract on the 21st Street road, to permit ready access between the two tracts. The principal entrance to the 160 acre tract was at its northwest corner (the nearest corner to the 80 acre tract), at the intersection of the west boundary township road and the 21st Street road.

'7. The 80 acre tract was first acquired in or about 1934 by Nelson Ives and operated by Robert Ives. During the operation of the 80 acre tract alone, only limited machinery was used, and it included horse drawn farm equipment. The 80 acre tract proved inadequate in size for a farm operation.

'8. In the latter part of 1939, Nelson Ives contracted to buy the 160 acre tract for delivery of possession, as owner, for the 1940 farm season. It was purchased for inclusion in the total farm operation conducted by Robert Ives, as operator.

'9. Even prior to taking possession as owner of the 160 acre tract, Nelson Ives, as owner, and Robert Ives, as operator, negotiated a contract with the United States Department of Agriculture, Soil Conservation Service, providing for agreed farming practices for the entire 240 acres as a farm unit. Under this contract and plan, the Department of Agriculture made an engineering survey of the entire 240 acres as to types of soil, adaptable farm uses of various portions of the entire acreage land contours, necessary terracing, other soil conservation practices needed and crop rotation patterns.

'10. The Department of Agriculture prepared land-use maps of the entire 240 acres with elevation and contour lines shown thereon. No monetary or cash consideration was made by the Department of Agriculture, its contribution being confined to engineering and technical advice and planning.

'11. A formal contract was executed between the Department of Agriculture and Nelson Ives, as owner, and Robert Ives, as operator, on January 17, 1940. This contract contained the following recital:

"This is a 240 acre general farm and the farmer should continue use of diversified farming practices.' In the contract, the landowner agreed to:

'1. Farm all terraced land on the contour.

'2. Follow land use plan as shown on the land-use map.

'3. Follow a good crop rotation including the use of legumes.

'4. Construct all terraces according to Soil Conservation Service specifications.

'5. Employ proper grazing...