State ex rel. Mitchell v. State Highway Commission

• Decision Date: 07 June 1947
• Docket Number: 36760.
• Citation: 182 P.2d 127,163 Kan. 187
• Parties: STATE ex rel. MITCHELL, Attorney General (ARN, substituted) v. STATE HIGHWAY COMMISSION.
• Court: Kansas Supreme Court

182 P.2d 127

163 Kan. 187

STATE ex rel. MITCHELL, Attorney General (ARN, substituted) v. STATE HIGHWAY COMMISSION.

No. 36760.

Supreme Court of Kansas

June 7, 1947

Syllabus by the Court

1. The general rule is that eminent domain statutes will be construed to authorize only the taking of an easement on or title to land sufficient for the public use intended rather than a fee title, unless the statute clearly so provides either expressly or by necessary implication.

2. The constitution of this state places no limitation or restriction on the nature of the title to lands which may be acquired by the process of eminent domain and the legislature has full power to determine the nature of the title to be so acquired by the condemnor.

3. It is not the province or right of courts to determine the wisdom of legislation touching the public interest. Their duty is to ascertain and, if possible, to make effective the legislative will.

4. The legislative intent must be ascertained from all provisions of a statute with the view of harmonizing them and not from any single or isolated portion thereof.

5. G.S.1945 Supp. 68-413, a special state highway commission condemnation statute, examined, interpreted, and held: The commission, in the name of the state, acquires a fee title to all land condemned as necessary for the purposes specified in the statute, subject to the termination of the fee as provided by the statute.

6. In order for the state highway commission to acquire land by the process of eminent domain the trial court in such a proceeding is required to first determine that the land sought to be so acquired is necessary to the lawful corporate purposes of the commission. G.S.1945 Supp. 68-413; G.S.1935 26-101.

7. An adjudication obtained at the instance of the highway commission in a regular condemnation proceeding that certain lands sought to be acquired by it are necessary for its lawful corporate purposes, unless reversed, is binding on the commission and cannot be challenged by it in a subsequent collateral proceeding for the purpose of obtaining a ruling on alleged facts which are in direct conflict with those upon which it acquired the land in the condemnation proceeding.

8. The sale, under statutory authority, by the commission of certain remnants of lots described in the opinion, when the commission determines they are no longer needed, does not constitute a violation of section 9, article 11, of the state constitution, which denies the state the right to carry on any work of internal improvement, except to adopt, construct reconstruct and maintain a state system of highways.

9. In order to obtain an adjudication of any question of law under the provisions of the declaratory judgment act (G.S.1935, 60-3127 et seq.) an actual controversy must exist.

10. When any legal question becomes moot, judicial action ceases. A fortiori courts will not determine an unnecessary or hypothetical constitutional question.

A. B. Mitchell, of Topeka (C. H. Hobart and Harold R. Fatzer, Asst. Atty. Gen., on the brief), for plaintiff.

Charles C. Clark and A. J. Anderson, both of Topeka (Stanley Taylor, of Topeka, on the brief), for defendant.

WEDELL Justice.

This is an original action in quo warranto by the state of Kansas, on the relation of the attorney general, against defendant, the State Highway Commission, to require it to show by what authority it attempts to sell real estate acquired by eminent domain for highway purposes, when the commission determines part of the land so acquired is no longer needed or used for highway purposes.

The pleadings consist of a petition and verified answer. Plaintiff asks for judgment on the pleadings. A sketch of the land involved and the essential surrounding physical facts is included to help clarify the pleadings: RPT.CC.1947110883.00010

(Image Omitted)

The material portions of the petition, in substance, are: Defendant is authorized to exercise the right of eminent domain as provided in G.S.1935, art. 1, chap. 26; defendant exercised such right in connection with the relocation of U.S. highway 50S in Johnson county and the construction of a four-lane highway; many parcels of land and lots were condemned in a proceeding in the district court of Johnson county including lots 20 and 21 in block 7, etc. (giving full legal description); the petition in the condemnation proceeding alleged defendant sought to acquire the two lots in question, and others, in the name of the state for the purpose of establishing, maintaining, improving and draining the state highway system; the district court found the allegations were true; the land was appraised as provided by law; only a small area of lots 20 and 21 was actually used for right of way purposes; (the portion of those lots used is the triangular portion designated on the attached map) in condemning other lots in that proceeding for the same purpose defendant acquired a house known as the Hammer House, which was located directly within the right of way for the relocation of the highway; defendant is about to move the house onto lots 20 and 21 and sell the same as one piece of land for private use; defendant advertised the sale of the house stating in the notice of sale the purchaser thereof would be given an option to purchase lots 20 and 21 for the sum of $2,000 and that defendant would convey its title or interest by quit claim deed; defendant will sell the land unless the court ousts it from usurping its power to do so; defendant's offer and attempt to sell the lands constitute a finding, a determination by it, that said lots are not necessary for the public use for which they were acquired and that no use or need therefor exists at this time for highway purposes; defendant is without authority of law to sell the same or to give title thereto to a private person; the action of defendant constitutes an abandonment of that part of the right of way and under the provisions of G.S.1945 [163 Kan. 191] Supp. 68-413 title to the land has reverted to the owners of the land of which it was a part; in the condemnation proceedings no compensation was made for minerals in place or other subsurface rights in the land and defendant cannot give a merchantable title thereto under the provisions of G.S.1945 Supp. 68-413 and the provisions of article 11, section 9 of our state constitution.

In its answer defendant denies plaintiff's conclusions of law but admits generally the allegations of fact set forth in the petition except as modified or explained in the answer.

The material portions of the answer, in substance, are: The description of the land set forth in the petition is the land defendant is attempting to sell; lot 20 was owned by Ellen Roe Bryant; Bryant owned other lots which it was necessary to acquire for highway purposes; the highway improvement actually utilized more than one half of lot 20 and the remainder thereof was too small for a building site and of no substantial value to the landowner; under the plat dedication of Bryantwood subdivision and the township planning board no building permit could be granted on the small remnant of lot 20; under the rule for assessment of compensation and damages relating to eminent domain Bryant would be entitled to receive the full value of the lot; lot 21 was owned by Charles H. Greisa; the highway improvement actually occupies a large portion of that lot and the remaining portion was likewise too small for a building site and was not contiguous to any other land owned by Greisa; defendant attempted to trade to Greisa that part of lot 20 not needed for highway purposes for that part of lot 21 which was required for construction of the highway; Greisa refused to make such exchange and insisted that he be paid for all of lot 21; lots 20 and 21 were appraised in their entirety in the condemnation proceedings and Bryant accepted the appraisal value of lot 20 at $1,317.60 in full payment of that lot Greisa accepted the appraisal value of lot 21 at $1,443.01 as full payment for that lot; the remnants of the two lots constitute a valuable building site for the location of a home; prior to the appraisal and in order to mitigate defendant's damages it sought to acquire the land on which the Hammer House was located and to move the Hammer House onto lots 20 and 21; a tentative agreement with Hammer to that end failed and Hammer insisted on full compensation for the land on which his house stands; defendant did offer the Hammer House and the lots mentioned for sale as stated by plaintiff but by reason of doubt as to the validity of the title defendant could convey no purchaser of the lots was obtained; defendant admits it has a plan whereby it proposes to move the Hammer House onto that portion of the lot not occupied by it and to offer the house and lots for sale to the highest bidder; that such project would be readily salable for the sum of $25,000, which would result in a saving to the state of approximately $15,000, but that doubt exists as to its authority to do so; an actual controversy exists and defendant seeks to have the question of its title determined under the declaratory judgment law; defendant has authority to make such sale under the provisions of G.S.1945 Supp. 68-413; defendant in all probability could use the land for other purposes but to hold that the property reverted to the former owners would constitute an unjust enrichment of such owners since they have received and accepted full compensation for their lots; there exists an actual justiciable controversy between plaintiff and defendant and others which justifies defendant's invoking the declaratory judgment law, G.S.1935, 60-3127 et seq., in order to obtain an authoritative and binding adjudication of the rights of defenda...