Kansas Turnpike Project, In re, 40335

• Decision Date: 25 October 1957
• Docket Number: No. 40335,40335
• Parties: Matter of the Condemnation of Land for KANSAS TURNPIKE PROJECT. Ora Ethel MOORE, Appellee and Cross-Appellant, v. KANSAS TURNPIKE AUTHORITY, Appellant and Cross-Appellee.
• Court: Kansas Supreme Court

Page 384

317 P.2d 384

181 Kan. 840

Matter of the Condemnation of Land for KANSAS TURNPIKE PROJECT.

Ora Ethel MOORE, Appellee and Cross-Appellant, v. KANSAS TURNPIKE AUTHORITY, Appellant and Cross-Appellee.

No. 40335.

Supreme Court of Kansas.

Oct. 25, 1957.

Syllabus by the Court.

1. The record examined upon a rehearing where the Kansas Turnpike Authority appealed from an order of the district court denying its motion to consolidate for trial as a single action the question of the sufficiency of the award of appraisers in an eminent domain proceeding presented by separate appeals of owners of separate interests in the same parcel of land, and held: (1) The question before the district court on the motion of the Authority was not whether the separate appeals of the landowner, the tenant, and the Authority should be consolidated for trial, but whether they could be severed when appeal is taken; (2) G.S.1955 Supp. 26-102 construed to mean that separate appeals of owners of separate interests in the same tract of land who appeal from an award of appraisers in an eminent domain proceeding cannot be severed, and that any one or all such appeals bring to the district court in its entirety the sole question of the sufficiency of the award to be tried as a single action; (3) pp 1 and 2 of the syllabus and the corresponding portions of the opinion in Moore v. Kansas Turnpike Authority, 181 Kan. 51, 310 P.2d 199 are withdrawn and vacated; and (4) under the facts and circumstances of this case the court should now consolidate the separately docketed appeals for trial as a single action.

2. Following Federal Land Bank of Wichita v. State Highway Comm., 150 Kan. 187, 92 P.2d 72, whenever, under Laws 1937, ch. 226, § 1 (G.S.1955 Supp., 26-102), an appeal is taken to the district court, either by the petitioner or by the landowner or by a lienholder from an appraisement made in proceedings in eminent domain had under G.S.1949, 26-101, et seq., the effect is to bring to the district court in its entirety the question of the sufficiency of the award, and the trial of that issue in the district court is conclusive on all of the parties, subject only to their right of appeal to the supreme court.

3. The law of paragraphs 1 and 2 of the syllabus has no application to, and in no way changes, the established rule that appeals from the award of appraisers by owners of an estate or interest in separate parcels of land may be docketed separately and may be consolidated for trial separately be determined in the sound discretion of the court under the authority of G.S.1949, 60-601 and 60-765.

Robert M. Cowger, Topeka, and Alex Hotchkiss, Lyndon, argued the cause and were on the briefs for appellant and crossappellee.

Ward D. Martin, Topeka, argued the cause and A. Harry Crane, Arthur L. Claussen, and Harvey D. Ashworth, Topeka, were with him on the briefs for appellee and cross-appellant.

Robert M. Cowger, Topeka, and Alex Hotchkiss, Lyndon, amici curiae.

Robert M. Cowger, Topeka, and Blake A. Williamson, Kansas City, amici curiae.

Edward M. Boddington, J. O. Emerson, Edward M. Boddington, Jr., Arthur J. Stanley, Jr., J. E. Schroeder, Lee E. Weeks, Leonard O. Thomas, and J. D. Lysaucht, Kansas City, amici curiae.

Wendell L. Garlinghouse, Topeka, and Harry T. Coffman, Lyndon, amici curiae.

HALL, Justice.

This matter is before the court on rehearing. It was previously considered and is reported in 181 Kan. 51, 310 P.2d 199.

Since this is a rehearing, it would serve no useful purpose to recite the extensive facts of the case. They are reported in the previous decision and reference is made thereto.

Suffice it is that this case is a condemnation appeal involving a single 160 acre parcel of land. After appropriate appeals to the district court from the award of the appraisers a motion was filed by the Kansas Turnpike Authority to consolidate the various appeals for trial. The Turnpike moved to consolidate the cases as a matter of law under G.S.1955 Supp. 26-102, and not as a matter of discretion of the court under G.S.1949, 60-601 and G.S.1949, 60-765.

The court overruled the motion and refused to consolidate the appeals for trial. In due course an appeal was taken in this court. The appellant Kansas Turnpike Authority specified as error the following question which was considered in the previous hearing of the case, to wit:

'The sole question involved is 'Does an appeal in the District Court from an appraisement in an eminent domain proceeding bring to the District Court in its entirety the question of the sufficiency of the award to be tried in a single action as to all of the parties?'' [181 Kan. 51, 310 P.2d 201.]

After an exhaustive study of the authorities which were cited in the previous decision the court was of the opinion that the matter of consolidation of such cases for trial was governed by the legislative intent of G.S.1955 Supp. 26-102. The statute provides as follows:

'If the petitioner or the owner or any lien holder of record of any lot or parcel of ground so condemned shall be dissatisfied with the appraisement thereof, he shall, within thirty days, file a written notice of appeal with the clerk of said court and give bond for the costs thereof, to be approved by said clerk, and thereupon an action shall be docketed and tried the same as other actions. * * *' (Emphasis ours.)

The court said, 181 Kan. at page 57, 310 P.2d at page 204 of the previous opinion:

'The use of the disjunctive in the foregoing statute indicates the legislative intent that each owner of an interest in property may have a separate trial for the value of his property.'

The court further said, 181 Kan. at page 59, 310 P.2d at page 205:

'We cannot accept appellant's contention. In this jurisdiction the rule followed in consolidation of cases for trial is not one of substance but one of procedure [under the provisions of G.S.1949, 60-601 and 60-765].

* * *

* * *

'Motions for consolidation under the statutes are in the sound discretion of the trial court. Railway Co. v. Hart, 7 Kan.App. 550, 51 P. 933; Rice v. Hodge, 26 Kan. 164; and Todd v. Central Petroleum Co., 153 Kan. 550, 112 P.2d 80.

'In the absence of any showing of abuse of discretion in refusing to consolidate these appeals for trial, the judgment of the district court will be affirmed. No abuse of discretion is shown here.'

In its previous opinion the court emphasized the disjunctive aspects of G.S.1955 Supp. 26-102, and decided that it was the intent of the legislature to give the petitioner or the owner or any lienholder or any interested party the right to separate trial for the value of his interest in the land taken.

In arriving at this conclusion the court was not unmindful of Federal Land Bank of Wichita v. State Highway Comm., 150 Kan. 187, 92 P.2d 72. The majority opinion cited and quoted from the case but distinguished it along with a persuasive line of authority on the basis of the disjunctive aspects of the statute.

After rehearing and further study the court is now of the opinion that its previous decision ought to be vacated and set aside for the following reasons:

Following our previous decision (Moore v. Kansas Turnpike Authority, 181 Kan. 51, 310 P.2d 199, and other citations therein) eminent domain begins as a special statutory proceeding in rem under the Kansas statutes. See, also, State v. Boicourt Hunting Ass'n, 177 Kan. 637, 282 P.2d 395; and Walker v. City of Hutchinson, 178 Kan. 263, 284 P.2d 1073; 352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 178.

As a matter of substantive law under the provisions of G.S.1949, 26-101, et seq., as amended by G.S.1955 Supp. 26-102, an appeal in an eminent domain proceeding from the award of the appraisers to the district court brings to that court a single action to be tried as such, without separating such action into as many separate actions as there are parties interested in the particular tract involved in the appeal, following Federal Land Bank of Wichita v. State Highway Comm., supra.

The salient facts of that case were that the State Highway Commission filed its petition to condemn certain lands for highway purposes. Notice was given the landowner as well as the bank, a lienholder, which held a mortgage on the tract involved.

The bank then filed an application alleging it held unsatisfied mortgage liens on the land and asked that an order be made to pay the award to the bank.

In due course, the appraisers made their report and the bank appealed from the award. Neither the landowner nor the State Highway Commission filed any notice of appeal from the appraisement made.

The State Highway Commission then filed its motion for an order determining the questions of law propounded. The first question was whether the landowners were parties to the appeal; the second, if they were not parties, what was the measure of damages to which the bank was entitled.

The question as to the division of the award as between the landowner and the lienholder was not before the court.

The court, after reviewing the history of the condemnation statute, said:

'* * * In 1937, the provision of the general condemnation act conferring right of appeal theretofore granted to the petitioner or landowner was amended by Laws 1937, ch. 226, § 1, now appearing as G.S.1937 Supp. 26-102, and now reads: 'If the petitioner or the owner or any lienholder of record of any lot or parcel of ground so condemned shall be dissatisfied with the appraisement thereof, he shall, within thirty days, file a written notice of appeal with the clerk of said court and give bond for the costs thereof, to be approved by said clerk, and thereupon an action shall be docketed and tried the same as other actions.'

'It will be observed that under that statute appeal is perfected, not by serving notice on any parties occupying what might be called an adverse position; it is perfected by notice filed with the clerk of the court. There is nothing in that statute...