Miltimore v. City of Augusta

• Decision Date: 08 December 1934
• Docket Number: 31811.
• Citation: Miltimore v. City of Augusta, 140 Kan. 520, 38 P.2d 675 (Kan. 1934)
• Parties: MILTIMORE v. CITY OF AUGUSTA.
• Court: Kansas Supreme Court

38 P.2d 675

140 Kan. 520

MILTIMORE v. CITY OF AUGUSTA.

No. 31811.

Supreme Court of Kansas

December 8, 1934

Syllabus by the Court.

In proceedings to condemn land for site for reservoir for city water supply, notice of appeal must be filed with clerk of district court of county where condemned land is situated (Rev. St. 1923, 26--201 et seq., 26--205, 60--3301, 20--301).

In proceedings to condemn land for reservoir for city water supply, notice of appeal, from condemnation award by dissatisfied owner, served on mayor, held sufficient to bring city into court (Rev. St. 1923, 26--201 et seq., 26--205).

In proceedings to condemn land for reservoir for city water supply, fact that transcript of condemnation proceedings did not accompany landowner's notice of appeal from condemnation award did not vitiate notice (Rev. St. 1923 26--201 et seq., 26--205).

In proceedings to condemn land for site for reservoir for city water supply, determining value of condemned land on evidence of its adaptability for impounding water held not error.

In proceedings to condemn land for site for reservoir for city water supply, verdict finding value of land to be $100 per acre held not excessive.

When trial court in condemnation proceedings adjudged owner of condemned land to be entitled to larger sum than condemnation commissioners' award, landowner was entitled to interest on full amount of judgment and not merely on that part which exceeded condemnation award deposited with city treasurer payable on landowner's demand (Rev. St. 1923, 26--201 et seq.).

1. In proceedings to obtain a site for a reservoir the defendant city invoked the right of eminent domain conferred on it under article 2 of the General Condemnation Law (R. S 26--201 et seq.); and plaintiff, being dissatisfied with the award for his lands taken and damaged, appealed in strict conformity with section 5 of that statute (R. S. 26--205). Hel that the appeal was without procedural infirmity and the district court had jurisdiction of it, and service of notice of the appeal upon the mayor was sufficient to bring the city into court.

2. Error assigned on the admission of evidence touching the value of the condemned property considered, and no error discerned therein.

3. Error based on the claim that the verdict and judgment were excessive considered and not sustained.

4. On the cross-appeal, it is held that, when the trial court sustained the appeal and adjudged plaintiff to be entitled to a larger sum than the award allowed him by the condemnation commissioners, he was also entitled to interest on the full amount of the judgment--not merely on that part of it which was in excess of the condemnation award deposited with the city treasurer payable to his demand.

Appeal from District Court, Butler County; George J. Benson, Judge.

Proceedings by the City of Augusta to condemn land of Napoleon Miltimore. Napoleon Miltimore was dissatisfied with the condemnation award and appealed to the district court. From the judgment the City of Augusta appeals, and Napoleon Miltimore cross-appeals.

Affirmed on appeal, and remanded for modification on cross-appeal.

R. A Cox, of Augusta, and Stanley Taylor and K. M. Geddes, both of Eldorado, for appellant and cross-appellee.

E. W Grant, of Eldorado, and Robert C. Foulston and Lester L. Morris, both of Wichita, for appellee and cross-appellant.

DAWSON Justice.

This is an appeal and a cross-appeal from a judgment increasing a condemnation award for the taking of certain lands to make a reservoir for a water supply for the city of Augusta.

Briefly the facts were these: The plaintiff owned a 160-acre farm about two miles north of Augusta, consisting partly of good agricultural bottom land and partly of upland suitable mostly for pasture and hay meadow. The farm buildings were somewhat poor and run down, probably because the owner had been in a sanitarium for some years and the premises had been occupied by successive tenants. A stream, Elm creek, fed by springs, flowed through the farm.

In 1930, the city of Augusta decided to make provision for a water supply. The inhabitants voted a bond issue of $130,000 for that purpose. Some 94.3 acres of plaintiff's land were condemned as a part of the site for the reservoir; and a condemnation award of $4,234.50 for plaintiff's land taken, and $660 as damages for the remainder of his farm not taken, was deposited with the city treasurer to satisfy the city's liability therefor.

Plaintiff declined to accept this award, and appealed to the district court. On the issues joined, the jury returned a verdict in favor of plaintiff, assessing his damages at $10,087. The special findings read:

"1. What was the most valuable use for which the 160 acre tract of Napoleon Miltimore was adopted, on October 20, 1930?

"Answer of Jury: For Impounding Water.

"2. What do you find to be the fair and reasonable market value, for the most valuable use to which it was adapted, of the 94.3 acres which was taken by the City of Augusta and included in the reservoir site, as of October 20, 1930?

"Answer of Jury: $9,430.00.

"3. What was the fair and reasonable market value of the 65.7 acres not taken as a part of the 160 acre tract on Oct. 20, 1930, immediately before any part of said 160 acre tract had been appropriated for water impounding purposes ?

"Answer of Jury: $50.00 per acre.

"4. What was the fair and reasonable market value of the 65.7 acres of the Miltimore land remaining on Oct. 20, 1930, and immediately after 94.3 acres had been appropriated by the City of Augusta?

"Answer of Jury: $40.00 per acre.

"5. How much do you allow Napoleon Miltimore as compensation for the 94.3 acres of land taken?

"Answer of Jury: $9430.00.

"6. How much do you allow to Napoleon Miltimore as compensation, if anything, for depreciation of the 65.7 acres remaining?

"Answer of Jury: $657.00."

Judgment was entered accordingly, and the city appeals. In computing the interest due on the principal amount, the court excluded therefrom any allowance of interest on the $4,894.50 which the city had deposited with the city treasurer payable to plaintiff's demand. From the latter ruling the plaintiff presents a cross-appeal.

Considering the questions raised by the appellant city, it is first contended that plaintiff's appeal was never properly perfected, and in consequence the district court had no jurisdiction. The pertinent statute provides that any owner of lands aggrieved by the paucity of the condemnation award may appeal "by filing with the clerk of the said court, within thirty days after the filing of the decision or award of said commissioners, written notice of appeal, and giving bond for the costs thereof, to be approved by said clerk." R. S. 26--205.

In what respect plaintiff failed to conform to this statute in taking his appeal is not clear. Counsel for the city examine at some length certain statutes which formerly governed the exercise of eminent domain and appeals therefrom, and cite some decisions based thereon; but, in the revision of 1923, the present statute (R. S. 26--101 et seq.) was enacted to supersede and unify a number of miscellaneous statutes dealing with this subject. See Report of Commissioners to Revise the General Statutes. December 1922, pp. 97-99, 277 278. That there is yet much to be done to clarify and codify the law of eminent domain is apparent from the exhaustive treatment the subject has received in official issues of the Judicial Council Bulletin for October, 1932; December, 1932; and July, 1933. Be that as it may, the statute under which the appellant proceeded to condemn and appropriate plaintiff's property was article 2 of chapter 26 of the Revised Statutes of 1923 (26--201 et seq.); and the procedural steps which plaintiff took to appeal from the condemnation award were taken in literal conformity with section 5 of the statute (R. S. 26--205). Counsel for appellant profess to be uncertain what court is meant where the statute, quoted in part above, says that the appeal must be filed with the clerk of said court. A perusal of earlier sections of the same statute makes it clear, we think, that it is the clerk of the district court of the county where the condemned land was situated,--the same district court whose presiding judge appointed the condemnation commissioners at the instance of the appellant city. If this were a more difficult question than it is, we would not hesitate to refer to the Civil Code (R. S. 60--3301), and to the broad supervisory powers over all official boards and tribunals vested in the district court (R. S. 20--301) to determine by deduction that the "court" mentioned in the statute governing appeals from condemnation awards was the district court, and that an appeal filed with the clerk of said court was filed with the only functionary who could make it effective. And, since the statute does not prescribe the precise mode of service of notice of appeal, it would seem that any mode of service which would fairly notify the city would answer the purpose, and personal service of such a notice upon the mayor of the city was sufficient. To the point that plaintiff did not file a certified transcript of the condemnation proceedings in the district court, a sufficient answer is that this desideratum is not one of the statutory requisites to perfect the appeal. By analogy, in ordinary litigation, a simple paper with a caption of a case and reciting that the litigant defeated in the district court, intends to and does appeal to the Supreme Court, served on his prevailing adversary, and timely filed in the district court, will perfect an appeal to the Supreme Court. R. S. 60--3306. In such cases the transcript of the proceedings can come...