Kansas Turnpike Project, In re

• Decision Date: 06 April 1957
• Docket Number: No. 40335,40335
• Parties: In the 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 199

310 P.2d 199

181 Kan. 51

In the 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.

April 6, 1957.

Rehearing Denied May 15, 1957. ¹

Syllabus by the Court.

1. The record is examined in a condemnation proceeding where an appeal is taken by the Kansas Turnpike Authority from an order of the district court refusing to consolidate appeals of the owners of various interests in the same tracts of land, held:

(a). The district court did not abuse its discretion in refusing to consolidate the appeals into a single trial.

(b). On cross appeal the court did not abuse its discretion in limiting the cross-examination of the court appointed appraisers.

2. In this jurisdiction the rule followed in the consolidation of eminent domain cases for trial is not one of substance but one of procedure (G.S.1949, 60-765 and G.S.1949, 60-601). Under this rule that court is not obliged as a matter of substantive law to consolidate appeals brought under the provisions of the eminent domain statute (G.S.1949, 26-102 et seq., as amended by G.S.1955 Supp. 26-102), of all parties interested in a particular tract of land. The appeals of different parties interested in the same tract of land do not bring to the district court as a matter of substantive law a single action to be tried as such.

3. Following Searcy v. State Highway Comm., 145 Kan. 709, 67 P.2d 534, the question of the extent to which cross-examination of a witness to impeach his credibility will be allowed is one of discretion of the trial court. In an action such as described in paragraph 1 of this syllabus the trial court did not abuse its discretion in refusing cross-examination of an appraiser witness with respect to the reasonable market value of the land taken plus the difference in value of the remaining land immediately before and immediately after the taking where his testimony as to such total value was the same as the total of such value on the appraisement report.

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.

Alex Hotchkiss, Lyndon, argued the cause and Robert M. Cowger, Topeka, was with him on the briefs for appellant and cross-appellee.

HALL, Justice.

This is a condemnation appeal.

The Kansas Turnpike Authority instituted an eminent domain proceeding by virtue of its authority under the provisions of G.S.1949, 26-102 et seq., as authorized by G.S.1955 Supp. 68-2006. The proceeding involved several tracts of land including the three tracts in this appeal.

The three tracts of land involved in this appeal were owned by the appellee Ora Ethel Moore, subject to a lease to Perry Jones for the production of limestone products and road rock and the farm tenancy of Raymond G. Briggs. The entire unit contained 160 acres from which the condemnation by the appellant Kansas Turnpike Authority amounted to a taking of 14.73 acres.

Appraisers were appointed by the district court who made thier report of appraisement.

Thereafter, and within the time provided by statute, Ora Ethel Moore and Perry Jones each filed separate notices of appeal. Likewise, the Kansas Turnpike Authority filed its separate notice of appeal. No other appeals were taken by any other party.

In due course, the district court notified the Kansas Turnpike Authority and Ora Ethel Moore that the Ora Ethel Moore appeal was set for trial on January 12, 1956. No mention was made concerning the Perry Jones appeal.

The Kansas Turnpike Authority then filed a motion for an order assigning for trial its appeal in its entirety and assigning as a single action the question of the sufficiency of the award including the issues raised both by Ora Ethel Moore and Perry Jones in their appeals. In other words, the Kansas Turnpike Authority moved to consolidate as a matter of law, and not discretion, the Moore and Jones appeals into one trial.

The motion was heard and overruled by the court. The court made the following order.

'It Is, Therefore, Considered, Ordered and Adjudged by the Court that the appeal of Kansas Turnpike Authority be tried at the same time as the appeal of Ora Ethel Moore and that the appeal of Perry Jones be heard separately.'

The case was tried to a jury with Ora Ethel Moore and the Kansas Turnpike Authority as the only parties to the suit. At the conclusion of the trial the jury returned a verdict in favor of the appellee Ora Ethel Moore for the sum of $4,015.22, being $1,473 for the land taken and $2,532.22 for damage to the remainder. The Kansas Turnpike Authority filed a motion for new trial assigning as particular error the order of the court overruling its motion for trial of the action on its appeal in its entirety. The motion for new trial was overruled. Appeal was then taken to this court.

Appellant makes three specifications of error but in his brief and oral argument stated:

'The sole question involved is 'Does an appeal to 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?''

Appellee and cross appellant agree that this is the question involved in appellant's appeal but raise this additional question on cross appeal:

'On the cross appeal of Ora Ethel Moore: Did the Court erroneously limit the cross examination of the court appointed appraisers where they testified to different values at the trial?'

Appellant urges this court to declare as a matter of substantive law that under the provisions of the eminent domain statutes, G.S.1949, 26-101 et seq., as amended by G.S.1955 Supp., 26-102, an appeal 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.

In support of his position appellant cites the following authorities: Bogart v. United States, 10 Cir., 169 F.2d 210; Carlock v. United States, 60 App.D.C. 314, 53 F.2d 926; City of St. Louis v. Rossi, 333 Mo. 1092, 64 S.W.2d 600; Dye v. Midland Val. Railroad Co., 77 Kan. 488, 94 P. 785; Federal Land Bank of Wichita v. State Highway Comm., 150 Kan. 187, 92 P.2d 72; G.S.1949, 26-101; Kansas & C. P. Ry. Co. v. Phipps, 4 Kan.App. 252, 45 P. 926; Kohl v. United States, 91 U.S. 367, 23 L.Ed. 449; Meadows v. United States, 4 Cir., 144 F.2d 751; Newton Trust Co. v. Commissioner of Internal Revenue, 1 Cir., 160 F.2d 175; Reiter v. State Highway Commission, 177 Kan. 683, 281 P.2d 1080; State ex rel. McCaskill v. Hall, 325 Mo. 165, 28 S.W.2d 80, 69 A.L.R. 1256; State Highway Commission v. Weiss, 167 Kan. 427, 207 P.2d 480.

The rule is also stated in 18 Am.Jur., Eminent Domain, § 316:

'Where the law secures a separate trial to 'the owner or owners of each separate parcel,' the court is not required to allow a separate trial to each owner of an estate or interest in each parcel. Thus, it is not contemplated that the lessee shall be given a trial separate and apart from the lessor.'

These authorities are very persuasive. It is clear from the Kansas cases particularly the earlier ones that while this court never adopted the substantive rule of law advocated by appellant it came very close to it.

In Federal Land Bank of Wichita v. State Highway Comm., supra [150 Kan. 187, 92 P.2d 73], the court said:

'* * * There is nothing in that statute which indicates or leads to the conclusion that as to a particular tract of ground the petitioner might appeal as to the lienholder and not the landowner, or vice versa, or that the lienholder could appeal separately as between the petitioner and the landowner, or that the landowner could appeal separately as between the petitioner and the lienholder. The statement is that if any one of the three appeal, an action shall be docketed and tried. The statute provides its own procedure up to the point where the appeal is perfected. When that has been accomplished 'an action shall be docketed and tried the same as other actions.' We are of opinion that under the statute there is and can be no separation as between parties. Whenever an appeal is taken, either by the petitioner or by the landowner or by a lienholder, 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 this court. * * *'

The nature of the issue on such appeal is also referred to in a later case where this court said in State Highway Commission v. Weiss, supra [167 Kan. 427, 207 P.2d 483]:

'The statute G.S.1947 Supp. 26-102, under which that appeal was taken, provides that if the petitioner shall be dissatisfied with the appraisement he shall, within thirty days, file a written notice of appeal with the clerk of the district court, whereupon it is to be docketed and tried the same as other actions. The question to be determined in such appeal is the amount of compensation or damages, if any, to be awarded on account of the appropriation by the condemnor of the property in question. * * *'

Our Court also has stated this rule in Dye v. Midland Val. Railroad Co., supra:

'* * * Apparently the proceedings were conducted in compliance with the statute. The land thereby became vested in the railroad company, and the money awarded as damages was transferred to the owner or owners of the land taken. Any dissatisfied owner might have appealed from the award of the commissioners to the district court where the amount of damages could have been submitted to a jury. The plaintiff in error exercised this right. In such cases the owners and all parties having...