Kansas Gas and Elec. Co. v. Winn, 50258

• Decision Date: 19 January 1980
• Docket Number: No. 50258,50258
• Citation: 227 Kan. 101,605 P.2d 125
• Parties: KANSAS GAS AND ELECTRIC COMPANY, Plaintiff-Appellant, v. Albert J. WINN et al., Defendants-Appellees. KANSAS GAS AND ELECTRIC COMPANY, Plaintiff-Appellee, v. Albert J. WINN et al., Defendants-Appellants.
• Court: Kansas Supreme Court

Page 125

605 P.2d 125

227 Kan. 101

KANSAS GAS AND ELECTRIC COMPANY, Plaintiff-Appellant, v. Albert J. WINN et al., Defendants-Appellees.

KANSAS GAS AND ELECTRIC COMPANY, Plaintiff-Appellee, v. Albert J. WINN et al., Defendants-Appellants.

No. 50258.

Supreme Court of Kansas.

Jan. 19, 1980.

Syllabus by the Court

1. Unless a statute specifically authorizes the condemning authority to take title to real property in fee simple, no language incorporated in the papers of the eminent domain proceeding can enlarge or extend the power of the condemning authority beyond the limits imposed by the authorizing statute.

2. K.S.A. 17-618, which authorizes certain corporations to appropriate land for public use, does not authorize the taking of a fee simple estate.

3. In the case of a permanent easement the condemner has the paramount right to possession and use of all the land covered by the permanent easement for the purposes and uses set forth in the appraisers' report. The former proprietor of the soil retains fee title to the land and his rights extend to all purposes not incompatible with the rights of possession and use of the condemner.

4. The use made of an easement acquired by eminent domain must not only be germane to the purposes for which the easement was acquired but it must be reasonable as well.

5. A condemnation proceeding instituted under K.S.A. 26-501, Et seq., is a special statutory proceeding. Such proceeding does not provide a forum for litigation over the right to exercise eminent domain or to determine the extent of said right.

6. The right to exercise the power of eminent domain and to determine other issues such as the necessity and the extent of the taking can only be litigated in an individual civil action, usually by suit for injunction.

7. When the amount of the award is paid into court the condemner is entitled to possession and use of the property, and if necessary may obtain a writ of assistance to place it into possession of the land appropriated.

8. In an eminent domain proceeding the court has no right to litigate outside issues raised by the condemnee in an effort to restrict and limit the rights appropriated.

Robert D. Steiger of Law Offices of Ralph Foster, Wichita, argued the cause and was on the briefs for plaintiff-appellant and plaintiff-appellee.

F. C. McMaster of McMaster & Smith, Wichita, argued the cause and was on the brief for defendants-appellants, Albert J. Winn and Kathleen M. Winn.

Clyde M. Burns of Burns & Burns, P.A., Lyndon, argued the cause and was on the brief for defendants-appellees, Purl Lance and Evelyn Lance.

FROMME, Justice:

This appeal involves rights to possession and use of land taken by a public utility in a condemnation proceeding. The condemnation proceeding was filed by Kansas Gas and Electric Company (KG&E) for the purpose of acquiring a site for the construction of an electric generating plant and a reservoir for the impoundment of water. This site is commonly referred to as the Wolf Creek Nuclear Power Plant. It is located near Burlington, Kansas.

The appraisers' report was filed on February 21, 1975. The amounts of the two awards involved here were paid into court, drawn down by the landowners, and no question is raised concerning the amounts of these awards or the procedure followed in arriving at the amounts.

Some difficulty arose in 1978 over possession of the land and KG&E applied to the district court for writs of assistance under K.S.A. 26-507. KG&E sought possession and use of a 320 acre tract, hereafter referred to as the "Winn property," and of an 80 acre tract, hereafter referred to as the "Lance property." KG&E filed separate motions in the condemnation proceeding. The district court held separate evidentiary hearings. It fully explored the facts surrounding the stages of construction of the facilities, the current construction needs of KG&E, and the nature and extent of the possession and use requested by the utility.

The construction plans for the reservoir called for the construction of various buffer or saddle dams on these properties to be located along the high water mark of the reservoir. The construction area designated in the plans for this purpose included 250 feet on both sides of these saddle dams plus additional areas from which earth was to be taken to build the dams. Certain farm buildings, which had been appropriated, were located within the 250 foot strip designated as the construction area on the "Lance property." As to the "Lance property," the court limited the construction area to be used. KG&E and its contractors were not allowed to use the area where the buildings were located. It was ordered that heavy construction equipment should get no closer than 20 feet east of a chicken house and 50 feet east of a barn. Although the court found that demolition of the buildings would facilitate and lower costs of construction, it prohibited demolition of the buildings saying such was not absolutely necessary to carry out the purposes for which the land was condemned. The court further restricted the condemner's use of the land appropriated by limiting access on the west to five areas.

As to the "Winn property," the court found that KG&E was entitled to possession of the property to the extent necessary for the purpose for which it was taken, and consistent with the easement condemned. The only specific restrictions imposed against possession and use of this property were limited to the period of any appeal and until the mandate of this court is returned. The seemingly inconsistent holdings of the court as to these two properties were explained and justified by the court on the basis of separate hearings and differences in the evidence. The Winns have appealed from the order entered on the "Winn property." KG&E has appealed from the order entered restricting its possession and use of the "Lance property."

KG&E argues that K.S.A. 26-501, Et seq., the eminent domain procedure act, does not empower the district court in a condemnation proceeding to hear evidence and determine in specific instances the extent to which a condemner is entitled to possession and use of a permanent easement previously condemned. It further argues that such a determination may be obtained only by filing a separate action, such as an injunction action. KG&E paid for full legal title to the land as shown by the appraisers' report.

The Lances and the Winns in answering the foregoing contentions assume a condemnation proceeding is the proper forum in which to obtain a determination on the extent of the use acquired and argue that the nature and extent of the interest taken by KG&E limits and restricts the possession and use which KG&E may make of the premises.

The first question to be answered is whether KG&E obtained fee simple title by reason of the appraisers' report and the payment of the entire value of these properties as set by the appraisers.

The statute authorizing KG&E to exercise the right of eminent domain in this case is K.S.A. 17-618 and provides that "(l)ands may be appropriated for the use of" certain corporations. The general rule is that an eminent domain statute will be construed to authorize only the taking of an easement on land sufficient for the public use intended in the authorizing statute. Unless a statute specifically authorizes the condemning authority to take title to real property in fee simple, no language incorporated in the papers of the eminent domain proceeding can enlarge or extend the power of the condemning authority beyond the limits imposed by the authorizing statute. Sutton v. Frazier, 183 Kan. 33, 34, 325 P.2d 338 (1958); State ex rel. v. State Highway Comm., 163 Kan. 187, 182 P.2d 127 (1947). The authorizing statute in this case does not specifically authorize the taking of a fee simple estate and therefore KG&E is limited to an appropriation for the use and purposes of the corporation, a permanent easement.

The jurisdictional instrument in a condemnation proceeding is the petition. In this case the petitioner expressed a desire to obtain a permanent easement over, on, under and through the entire property. It stated that KG&E was organized and is operating as an electric public utility corporation for the manufacture, generation, transmission and distribution of electric current and energy for light, heat and public use within the meaning of K.S.A. 17-618. The purpose of the taking as stated was "for the acquiring of a site for the location of an electric generating plant and reservoir to be constructed by the Plaintiff for the generating of electricity and the distribution of the same." The petition included a statement that the permanent easement sought would be the dominant estate over, on, under and through the entirety of the property and would be burdened with all ad valorem taxes and assessments. Prayer was made for immediate possession.

The appraisers' report set the value of the entire "Winn property" before condemnation at $299,250.00, with no value remaining after condemnation, and a total award of $299,250.00. On the "Lance property" the value of the entire property before condemnation was set at $86,190.00, with no value remaining after condemnation, and a total award of $86,190.00. In addition to the usual recitations in their report, the appraisers stated: "We did not consider the permanent easement aspect of the petition, but made our appraisals on the basis of a complete taking of the property."

On the basis of Sutton v. Frazier, 183 Kan. 33, 325 P.2d 338, and State ex rel. v. State Highway Comm., 163 Kan. 187, 182 P.2d 127, the petition controls. It is the jurisdictional instrument. A permanent easement was sought. K.S.A. 17-618, which...