Kansas Homes Development Co. v. Kansas Turnpike Authority, 40410
| Decision Date | 09 November 1957 |
| Docket Number | No. 40410,40410 |
| Citation | 181 Kan. 885,317 P.2d 789 |
| Parties | KANSAS HOMES DEVELOPMENT COMPANY, Inc., et al., Appellees, v. The KANSAS TURNPIKE AUTHORITY of the State of Kansas, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
Upon examining the record in an appeal from the appraisers' award in an eminent domain proceeding where the Kansas Turnpike Authority condemned land in which the landowner and a sewer district were interested parties and where, as a result of the court's theory of the trial procedure which had been previously stated in a pretrial conference, the trial court excluded any evidence on the part of the sewer district regarding the question of the reasonable market value of the land throughout the trial and the trial court specified when granting motions for new trial filed by both the landowner and the sewer district that it thought such exclusion of evidence was prejudicial error, it is held, for reasons set out in the opinion the granting of the motion for new trial did not show abuse of judicial discretion and was not error.
Lester M. Goodell, Topeka, argued the cause, and Robert M. Cowger, Topeka and Donald C. Little, Kansas City, were with him on the briefs for the appellant.
Willard L. Phillips, Kansas City, argued the cause, and Conrad Miller, Joseph H. McDowell, and Thomas C. Lysaught, Kansas City, and Charles W. Hess, Kansas City, Mo., were with him on the brief for the appellees.
This is an appeal in an eminent domain proceeding by the Kansas Turnpike Authority from an order of the district court granting a new trial and setting aside a verdict, and for costs. The landowner, Kansas Homes Development Company, Incorporated, had appealed from the award of the appraisers.
We shall refer to Kansas Turnpike Authority as the authority, to Kansas Homes Development Company, Incorporated, as the landowner, and to Wyandotte Township Sewer District No. 9 as the sewer district.
In the original eminent domain proceeding the landowner, the sewer district and certain mortgagee lienholders were all named as interested parties. The record shows the landowner was principally engaged in the development and promotion of project housing; that it had developed the Stony Point Heights area consisting of 300 homes immediately north of the land in question; the landowner had acquired the land about a year before the commencement of the eminent domain proceeding; sixty-seven acres were platted into 245 lots of the approximate dimension of seventy-five feet frontage by one hundred feet in depth; at the time of the taking of the land, the only existing improvement was its inclusion in a benefit main sewer district with a main sewer in place and a disposal plant built by the sewer district in Stony Point Heights to serve that subdivision along with Stony Point South Subdivision, the land in question; Stony Point South Subdivision is located four and one half miles west of the city limits of Kansas City, Kansas, and some distance south of highways 24 and 40.
The authority commenced an eminent domain proceeding for the condemnation of a strip of land 300 feet in width running east and west in landowner's Stony Point South Subdivision. There were twenty-nine lots taken in their entirety and sufficient of eleven other lots was taken so that it is conceded for all purposes herein that forty lots were actually taken by the authority for turnpike right-of-way. This left a remainder of 205 lots to the landowner and the court-appointed appraisers filed their award as follows:
'Damages of land taken $24,000.00
'Damages of every nature 36,000.00
subject to the unpaid taxes for sewers in Wyandotte Township Sewage District No. 9 in Wyandotte County, Kansas.'
No application was made to have the appraisers determine what they intended by the 'subject' clause or to set any amount of money in lieu thereof as an item of damage to the land but we are not concerned therewith at this time.
It was stipulated by the parties that October 4, 1955, was the day of the taking. There was a pretrial conference held on January 5, 1956, with all parties present, where stipulations were entered into but since some of the stipulations do not affect the appeal they will not be set out. Discussion was had regarding the measure of damages by reason of the taking and the court, in considering what recovery the sewer district would be entitled to, intimated that the sewer district could recover from the authority the full amount of taxes which had been spread against the property as a special assessment with which to pay outstanding twenty-five year bounds issued by the sewer district prior to the condemnation of the land together with interest for the life of the bonds. The trial court here was apparently referring to the land taken. The court suggested that the sewer district compute the amount of its lien on the property for future purposes. In discussing probable instructions counsel for the sewer district remarked for clarification of an instruction that the lien it had was not the actual total because the amount should cover both the lien and the interest. The record lien of approximately $200.00 with interest would amount to some $400.00 for each lot. The court further stated that its thinking then was that the sewer district would have to look to the landowner. The colloquy just referred to followed a probable instruction to the effect that the sewer district had a lien against the described lots in a certain amount and the jury would be instructed to return its verdict for that purpose in favor of the sewer district. Apparently this colloquy refers to land not taken.
On January 6, 1956, there was another pretrial conference held with all parties present. This conference was restricted to discussion of authorities on whether evidence would be permitted as to the tax lien and whether there would be a separate award for value of land taken from the sewer district together with an additional award for the special assessment levied for retirement of bonds issued for installation of the sewer. The trial court ruled that the following would be added to the general instruction:
On January 9, 1956, the day set for trial, the court, before impaneling the jury, ordered a further pretrial conference. All parties were present. The trial court announced a change of opinion and ruled that the authority took the land free and clear of all special tax liens. The landowner could by experts establish the value of the land taken free and clear which would make the land of greater value then a piece of property subject to special assessments. The sewer district would determine its lien and make it of record in the absence of the jury and after the final award on post-trial hearing that amount would be set over to the sewer district. The record contained statements to the effect that so to the value of lots not taken, the sewer district was not to be bound by that trial, and the authority, in reliance on the trial court's ruling that it would determine that fact in a post-trial proceeding, would have no evidence at the trial.
After impaneling the jury there was a colloquy between the court and counsel from which it could be...
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Kansas Homes Development Co. v. Kansas Turnpike Authority, 40563
...grounds, not here material from which order the Authority appealed to this court, see appeal No. 40,410, Kansas Homes Development Co. v. Kansas Turnpike Authority, Kan., 317 P.2d 789. Following the appeal of the Authority to this court on May 22, 1956 (appeal No. 40,410), the owner and the ......