Simmons v. State Highway Commission, 39619

• Citation: 283 P.2d 392,178 Kan. 26
• Decision Date: 07 May 1955
• Docket Number: No. 39619,39619
• Parties: In the Matter of the Condemnation of Land for State Highway Purposes. Emma Gebhart SIMMONS and McNaghten Loan Company, Inc., Appellees, v. STATE HIGHWAY COMMISSION of the State of Kansas, Appellant.
• Court: Kansas Supreme Court

Page 392

283 P.2d 392

178 Kan. 26

In the Matter of the Condemnation of Land for State Highway

Purposes.

Emma Gebhart SIMMONS and McNaghten Loan Company, Inc., Appellees, v. STATE HIGHWAY COMMISSION of the State of Kansas, Appellant.

No. 39619.

Supreme Court of Kansas.

May 7, 1955.

Syllabus by the Court.

In an appeal from a judgment awarding compensation for land taken from two tracts of land and damages for injury and depreciation to the remainder of such tracts in a condemnation proceeding to widen and improve a public highway, where the State Highway Commission was proceeding under the provisions of the controlled access facilities statute (G.S.1953 Supp. Chap. 68, Art. 19), the record examined, and held: Under the facts, conditions and circumstances set forth in the opinion the trial court did not err (1) in receiving evidence tending to show that land taken, possessing access rights, had a greater value than remaining adjacent land without those rights; (2) in refusing to submit requested special questions; (3) in holding the jury's findings, respecting the value of the land taken and injury and depreciation to the land remaining were not excessive; and (4) in approving the general verdict and rendering judgment in accord therewith.

Howard G. Engleman, Salina, argued the cause, and W. B. Kirkpatrick, Asst. Atty. Gen., and Henry L. Daniels, Topeka, were with him on the briefs, for appellant.

C. L. Clark, Salina, argued the cause, and James P. Mize and Thomas M. Lillard, Jr., Salina, were with him on the briefs, for appellees.

PARKER, Justice.

This is an appeal from a judgment in a condemnation proceeding to condemn land for the widening and improvement of a public highway.

On August 11, 1953, the State Highway Commission instituted proceedings to condemn certain land, including all rights of access in and to such land as permitted by G.S.1953 Supp. Chap. 68, Art. 19, located in Saline County, Kansas, which land was owned by Emma Gebhart Simmons and subject to a mortgage to McNaghten Loan Company, Inc., for the purpose of widening existing U. S. Highway 81 into a four lane highway between the south city limits of Salina and the Smoky Hill Air Force Base, located south of that city. The same day the district court of Saline County determined that the petition was sufficient; that the commission had the power of eminent domain; and that the lands were necessary for state highway purposes. Thereafter appraisers were duly appointed and returned their appraisal, allowing $19,290 for the land taken and damages for that remaining.

Appeals were taken from the award of the appraisers by both the landower and the commission, as authorized by G.S.1953 Supp. 26-102. In district court the commission filed its verified statement of the sum of money estimated by it as condemnor to be just compensation for the land taken, including damages. Thereupon the landowner accepted such sum, which was $14,796.60, without prejudice to her right of appeal and this amount was paid her by the clerk of the district court.

In due time the cause was tried by a jury which returned its general verdict for the land taken and damages to the remainder in the amount of $29,300, and returned answers to special questions. Thereafter the commission filed its motions to set aside such findings and for a new trial and, when both motions were overruled, perfected this appeal.

Two adjacent tracts of land are involved in this proceeding. These, in the interest of clarity and to avoid confusion, will be referred to throughout this opinion, as they were in the court below, as the north and south tracts.

Prior to the condemnation the north tract consisted of 72.10 acres in the South Half (S 1/2) of the Northwest Quarter (NW 1/4) of Section Twenty-five (25), Township Fourteen (14) South, Range Three (3) West, lying immediately south of the city limits of Salina. At the time of the condemnation it was unimproved farm land and had been so used for many years. Approximately 33 acres of the east portion thereof was cut off from the remaining acreage by the Union Pacific Railroad tracks. As a consequence this portion of the tract was less suitable for possible future residential development than the west 35.26 acres.

The south tract, located in the Southwest Quarter (SW 1/4) of Section Twenty-five (25), Township Fourteen (14) South, Range Three (3) West, consisted of 156 acres and was located immediately adjacent to and south of the north tract. Located on the northwest corner of this tract, which was also being used for farming purposes, was a dwelling house, barn and other improvements.

Before the condemnation U. S. Highway 81, which ran north and south on the section line west of each of the two tracts, consisted of a single lane highway and the landowner had one regular roadway into the land from the west which was directly south of the farm house. However, it is conceded that at that time she had a common-law right of access onto such highway at any point, subject to compliance with the lawful regulations pertaining to entrances promulgated by the commission.

In condemning land for the new roadway the commission took a strip of land of varying width, approximately 1,190 feet long, amounting to 3.84 acres from the west side of the north tract, including all rights of access. It also took a strip of land one-half mile in length together with all rights of access from the west side of the south tract, except a 40-foot roadway leading into the house. Actually, in addition to taking the land described, this action resulted in the landowner losing the right to use approximately 3,780 feet of access she had theretofore possessed along the highway, the northbound lane of which as now constructed marks the western boundary of her land. In addition the commission took an easement for borrow, amounting to 2.68 acres from the south tract, the title to which remained in the landowner.

Prior to the trial of the cause the ownership of the land, the acreage taken and the acreage remaining were all agreed to by stipulation, in substance as heretofore stated. Among other things, not previously mentioned, the stipulation provided (1) that the McNaghten Loan Company, Inc., as mortgagee, was to be bound by the judgment and verdict of the jury rendered in the cause when and if approved and confirmed by the court, and (2) that the Saline County Zoning Plan, which we note prohibited use of the involved land for commercial purposes and designated it as residential, was in effect at the time of the condemnation. Such stipulation also contains provisions recognizing that Kraft Manor Addition and...