Landau Inv. Co., Inc. v. City of Overland Park, 74627
| Decision Date | 24 January 1997 |
| Docket Number | No. 74627,74627 |
| Citation | 930 P.2d 1065,261 Kan. 394 |
| Parties | LANDAU INVESTMENT COMPANY, INC., and Deauville, Inc., Appellants, v. CITY OF OVERLAND PARK, A Municipal Corporation, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Eminent domain in Kansas is a special statutory creature and not a civil action governed by the Kansas Code of Civil Procedure. Proceedings in eminent domain are administrative, not judicial, in nature. Such proceedings are in the nature of an inquest.
2. An appeal from the appraisers' award in an eminent domain proceeding by the plaintiff or any defendant shall bring the issue of damages to all interests in the tract before the court for trial de novo. The appeal shall be docketed as a civil action and tried as any other civil action; however, the only issue to be determined therein shall be that of just compensation to be paid for the land or right therein taken at the time of the taking and for any other damages allowable by law. K.S.A. 26-508.
3. The legislature, in its wisdom, specifically prescribed what facts are to be stated in a petition for condemnation, the jurisdictional instrument requisite to the commencement of a valid condemnation proceeding. A vital failure in this document, one which makes it impossible for the commissioners to award a just and full compensation to the landowner, vitiates the proceeding.
4. Under the unique circumstances of this case, the mistaken description of the easements in the City of Overland Park's eminent domain petition was not a vital failure and did not vitiate the proceedings but amounted to a defect in form which did not impair substantial rights of the parties under the provisions of K.S.A. 26-502.
5. The policy of permitting amendments to a pleading when justice so requires, when the merits of the action will be served thereby, and when the opposing party would not be prejudiced, as expressed in K.S.A. 60-215(b), is also reflected in K.S.A. 26-502, the statute governing the contents of an eminent domain petition, which provides that no defect in form which does not impair substantial rights of the parties shall invalidate any proceeding.
6. Under the unique circumstances of this case, permitting a condemnor to amend the eminent domain petition under K.S.A. 60-215(a), "byleave of court," is not inconsistent with the Eminent Domain Procedure Act.
7. Amendment of an eminent domain petition under the provisions of K.S.A. 60-215(a) does not run counter to K.S.A. 26-507(a), which provides that upon payment to the clerk of the court, title, easement, or interest appropriated in the land condemned shall thereupon immediately vest in the condemnor because the amendment granted relates back to the date the petition was filed.
Ruth L. Landau, Overland Park, argued the cause and was on the briefs, for appellant.
Henry E. Couchman, Jr., of McAnany, Van Cleave & Phillips, P.A., Kansas City, argued the cause, and Daniel B. Denk, of the same firm, was with him on the brief, for appellee.
Landau Investment Co., Inc., (landowner) appeals from an order granting the City of Overland Park (City) leave to amend its eminent domain petition by correcting the legal description of easements taken. The question we must decide is whether on appeal from an appraisers' award, the district court can, under any circumstances, authorize an amendment of pleadings. We hold that under the unique circumstances set forth, the court had such authority and affirm.
On January 27, 1994, the City filed a petition with the Johnson County District Court for eminent domain proceedings, City of Overland Park v. Unified School District No. 229, et al., Case No. 94 C 1054. The City sought to condemn, among other interests, a permanent drainage easement and a temporary construction easement on Tract No. 72 which was owned by Landau Investment Company, Inc. The City alleged that the taking of private property was necessary for the public use to improve 127th Street between Switzer and Antioch Roads.
Pursuant to a contract with the City, Burns & McDonnell Engineering Co., Inc., (Burns & McDonnell) provided engineering services for the 127th Street and Switzer improvements. Burns & McDonnell's contractual responsibilities included designing the improvements, preparing the project plans and specifications, determining and preparing legal descriptions of the easements to be acquired, and inspecting construction.
Relying on Burns & McDonnell's description, the City incorrectly described the easements on landowner's Tract 72 in its eminent domain petition as follows:
"PERMANENT DRAINAGE EASEMENT
Beginning at a point 815 feet West and 63 feet South of the Northeast corner of the Northeast 1/4 of Section 25, Township 13, Range 24; thence East 127 feet; thence South 77 feet; thence West 41 feet; thence North 48? 59' 04"' West 113 feet to the Point of Beginning; containing 6353 square feet, more or less.
Project plans for the 127th Street improvements were prepared by Burns & McDonnell, showing the locations of the easements on Tract 72 and given to the City. Upon request, a copy of the project plans were given to the landowner, showing the locations of the permanent drainage and temporary construction easements that the City intended to acquire on Tract 72. Project plans correctly described the property easements to be taken by the City:
"PERMANENT DRAINAGE EASEMENT
Beginning at a point 627.20 feet West and 63.0 feet South of the Northeast corner of the Northeast 1/4 of Section 25, Township 13 North, Range 24 West; thence east, parallel to the north line of Section 25, a distance of 124.78 feet; thence South, normal to the north line of Section 25, a distance of 77.0 feet; thence West, parallel to said north line, a distance of 39.6 feet; thence northwesterly a distance of 114.82 feet to the Point of the Beginning, containing 6,329 square feet.
The legal descriptions in the City's petition place the easements approximately 200 feet west of their locations as shown on the plans. As described in the petition, the temporary construction easement on Tract 72 overlaps the temporary constructioneasement on Tract 71 and a portion of the right-of-way on Benson Street.
On March 1, 1994, the Johnson County District Court made the necessary findings to permit the eminent domain action to proceed and appointed appraisers pursuant to the Eminent Domain Procedure Act. See K.S.A. 26-504. The appraisers were supplied with the same project plans produced by Burns & McDonnell for the City, with locations of the easement highlighted. The court-appointed appraisers met with the landowner and its counsel at the construction site on Tract 72 to view the property. They reviewed the locations of the easements as shown on the plans with the landowner and counsel.
On March 15, 1994, the court-appointed appraisers, having provided notice to the landowner, held a public hearing. The landowner and its counsel attended. The project engineer described the improvements in general terms and referred to the accurate project plans. On April 15, 1994, the court-appointed appraisers filed their appraisers' report with the court. However, the report contained the same incorrect legal description as was set forth in the petition.
On April 18, 1994, the court entered an order approving the appraisers' report. Within 30 days, the City paid to the clerk of the district court the amount of the appraisers' award in accord with K.S.A. 26-507. Project plans provided for the construction of a 10 by 5 foot reinforced concrete box and a length of grated riprap upon the permanent drainage easement on Tract 72. Prior to construction, the temporary construction easement on Tract 72 was staked as shown on the plans. The actual construction was carried out within the temporary construction easement that had been staked. These permanent improvements were completed at the location shown on the project plans.
On May 6, 1994, the landowner filed a notice of appeal from the award of the court appointed appraisers. Following this notice, Landau Investment Company, Inc. and Deauville, Inc. v. City of Overland Park, ...
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