Jockheck v. Shawnee County Com'rs

• Decision Date: 19 September 1894
• Parties: CARL JOCKHECK et al. v. THE BOARD OF COMMISSIONERS OF SHAWNEE COUNTY et al
• Court: Kansas Supreme Court

37 P. 621

53 Kan. 780

CARL JOCKHECK et al. v. THE BOARD OF COMMISSIONERS OF SHAWNEE COUNTY et al

Supreme Court of Kansas

September 19, 1894

Error from Shawnee District Court.

IN 1868, one J. A. Schafer became the owner of lots 127, 129 and 131 Van Buren street, in the city of Topeka, Shawnee county, and occupied and used the same with his family as a homestead from the time he purchased said lots until the time of his death, which took place in 1872. The said J. A Schafer died intestate, leaving Rosa Schafer, his widow, and Helena Schafer, his daughter, who was then less than one year old, as his only heirs-at-law. Rosa Schafer and her said daughter continued to occupy said lots as their homestead until 1874, at which time Rosa Schafer married Carl Jockheck one of the plaintiffs in this case, and Carl Jockheck and Rosa Jockheck, his wife, and said Helena Schafer, his stepdaughter, continued to occupy said premises as their homestead from that time continuously until the death of the said Rosa Jockheck, in 1887; said Rosa Jockheck died intestate, leaving as her only heirs-at-law said Carl Jockheck, her husband, and said Helena Schafer, her daughter who continued to occupy said premises as their only residence from that time to the present, and are still so occupying said premises, together with a servant girl who has been living with them for the 10 years last past. On the 11th day of May, 1894, the board of county commissioners of Shawnee county, in writing, requested the said Carl Jockheck and Helena Schafer to state to the board what they would take for said lots, a copy of which is hereto attached, marked "A." On the 21st day of May, 1894, said Carl Jockheck and Helena Schafer, in response to said request said that they would take the sum of $ 16,500 for said lots, and submitted said proposition in writing, a copy of which is hereto attached, marked "B." Said board did not inform said Carl Jockheck and Helena Schafer whether they would accept said proposition or not, nor did said board, or anyone for them, have any further communication with said Carl Jockheck and Helena Schafer with regard to the purchase of said lots, nor was there any other offer of any kind whatever made by said board to said Carl Jockheck and Helena Schafer for said lots, nor did said board inform said Carl Jockheck and Helena Schafer that it deemed the price put on said lots as unreasonable or unsatisfactory, nor was there any other or further effort of any kind or character made to purchase said lots; but said board placed an order on its record of proceedings on the 22d day of May, the day after said price was submitted to them, in the absence of these plaintiffs and of which they had no knowledge whatever, except as they learned of such proceedings in the daily papers, a copy of which order is hereto attached, marked "C." On the 23d day of May, the said board made an application to the judge of the district court for the appointment of appraisers to condemn said lots. The petition, and the order appointing said appraisers, the order of the court and the report of appraisers are copied in full and set forth in the petition. These plaintiffs had no knowledge of said application or order until after the same had been obtained. Said appraisers so appointed made their report on the 26th day of May, which was filed on said day, a copy of which report is fully set forth in the petition in this action. On the 6th day of June, 1894, the amount of money assessed by said appraisers was deposited by said board with the county treasurer of Shawnee county for the use and benefit of Carl Jockheck and Helena Schafer. On the day of June, 1894, said Carl Jockheck and Helena Schafer filed their appeal bond and took an appeal from the award of said appraisers, and afterwards, and before the commencement of this suit, to wit, on the 11th day of June, 1894, said appeal was by them dismissed, and at the time of the commencement of this suit no appeal was pending. The county of Shawnee owned ground for a courthouse site, which had been purchased in September, 1884. Said site consisted of six lots, being a piece of ground 150 feet square. There were other sites in the city of Topeka suitable for courthouse purposes, which could have been obtained by purchase or otherwise, but which the board made no effort whatever to obtain. Said board never sought or inquired with reference to any other site than the one they proceeded to condemn, and which joined the site they already owned. Said board, on the 20th day of September, 1893, provided for submitting a proposition for plans, etc., for a courthouse, a copy of its record of which matter, marked "Exhibit A," is hereto attached. On the 3d day of October, 1893, said board made an order, a copy of which, marked "Exhibit B," is hereto attached. On the 4th day of January, 1894, the said board entered into a contract to build said courthouse with the defendant F. L. Stevenson. The dimension of said proposed courthouse is 173 by 93 feet, which includes porticos, steps, and approaches. A copy of said contract is hereto attached, marked "Exhibit C," and is made a part hereof. Said contractor, by virtue of his contract with said board, was about to take possession of the plaintiffs' said property, against their consent, at the time this action was commenced. The proposed court house is intended to be built partly on the six lots already owned by the county, and partly on the lots in controversy, which were, in fact, condemned as a part of a courthouse site.

The foregoing and the six exhibits aforesaid are the agreed facts herein.

The exhibits A, B and C are as follows:

"A.

"TOPEKA, KAS., May 11, 1894.

"Carl Jockheck, Esq., and others, owners of lots numbered 127, 129, 131, Van Buren street, Topeka, Kan.:

"By an action of the board, had October 3, 1893, and recorded at page 335 of journal D, the board found that, in the erection of a new courthouse, it would become necessary for the county to obtain title to lots numbered 127, 129, and 131, Van Buren street, city of Topeka, as additional ground on which to erect said courthouse. The board of county commissioners, therefore, acting for the county, respectfully ask that you submit to the board a proposition in writing, stating the price at which you will convey same to the county by full, unincumbered title in fee absolute; the payment to be made in cash, on presentation of deed accompanied by usual abstract, with certificate of county attorney as to the sufficiency of conveyance and character of title. By order of the board.

[SEAL.]

J. LEE KNIGHT, Chairman.

"Attest: C. T. MCCABE, County Clerk."

"B.

"TOPEKA, KAS., May 21, 1894.

"To the Honorable Board of County Commissioners of Shawnee County, Kansas:

"GENTLEMEN -- Your communication of the 11th instant, in which you inform us that, in the erection of a new courthouse, it will become necessary for the county to obtain title to lots numbered 127, 129 and 131 on Van Buren street, city of Topeka, etc., has been received; and, in answer to your request that we submit to your honorable board a proposition in writing, stating the price at which we will convey the same to the county by full, unincumbered title in fee absolute, payments to be made in cash, and deed accompanied by usual abstract, with certificate of county attorney as to the sufficiency of conveyance and character of title, we respectfully reply, stating that, in view of the improvements upon said property, the value of other property adjacent, and all the circumstances attending the location, we will take as compensation for said property the sum of $ 16,500, upon the terms indicated in your letter of inquiry. Very respectfully yours,

HELENA SCHAFER.

CARL JOCKHECK."

"C.

"Proceedings of May 22. Courthouse Site.

"Now comes on for hearing, the proposition of Helena Schafer and Carl Jockheck to sell to the county lots numbered 127, 129 and 131 on Van Buren street, city of Topeka, as additional ground for the courthouse site, for $ 16,500; and it appearing to the board that such sum of $ 16,500 is an unreasonable and unsatisfactory price for said lots, it is by the board ordered, that such proposition of said Helena Schafer and Carl Jockheck be, and the same is hereby, rejected. It is further ordered, that the county attorney be ordered to commence a suit to condemn said lots, under P 1639, General Statutes of 1889, in district court, Shawnee county."

The other exhibits are omitted.

This action was commenced in the court below on the 11th day of June, 1894, to restrain and forever enjoin the board of commissioners of the county of Shawnee, and F. L. Stevenson their agents, servants, and employes, from taking possession of the land heretofore described, or in any way interfering with the plaintiffs' use or occupancy of the same; and also that the said defendants, upon the final hearing of said action, be forever barred from setting up any right, title or claim to the property, and that they pay all costs. Upon the 22d day of June, 1894, the motion of plaintiffs for a preliminary injunction against the defendants, as prayed for, was heard and determined, upon the petition and the agreed statement of facts signed by the parties. After argument, and full consideration thereof, the court found in favor of the defendants, and against the plaintiffs, and refused the temporary injunction. Thereupon, the plaintiffs announced in open court that they elected to stand upon their petition and the facts as agreed to, as upon final trial, and gave notice of appeal. The court then rendered judgment in favor of the defendants, and against the plaintiffs for costs. The plaintiffs excepted to the rulings and decision of the court in denying their motion for a...