State Highway Commission of Kansas v. Puskarich

• Decision Date: 08 October 1938
• Docket Number: 33588.
• Citation: 83 P.2d 132,148 Kan. 388
• Parties: STATE HIGHWAY COMMISSION OF KANSAS v. PUSKARICH et al.
• Court: Kansas Supreme Court

83 P.2d 132

148 Kan. 388

STATE HIGHWAY COMMISSION OF KANSAS v. PUSKARICH et al.

No. 33588.

Supreme Court of Kansas

October 8, 1938

Syllabus by the Court.

Where a corporation having the power of eminent domain enters on and appropriates the land of any person for public purposes without having acquired the title thereto by formal condemnation or otherwise, the landowner may waive formal condemnation and sue on an implied contract for the value of the property taken. Gen. St.1935, 68-413.

The nature of a cause of action, whether it sounds in tort or implied contract, is to be determined from the allegations of the petition, and in case of doubt the words appropriate to an action in tort will be disregarded, and the action will be construed as one on quasi contract. Gen.St.1935, 68-413.

Where affected landowners were allowed to file claim for land appropriated and damage suffered for widening road and landowner filed suit on claim for value of land taken and building thereon and damage to land not taken, in which judgment was entered for landowner, payment of money and satisfaction of judgment operated to pass title to lands taken to the county for public use which title vested in highway commission notwithstanding that land was not formally condemned, since action by landowner was on implied contract for value of land appropriated. Gen.St.1935, 68-413.

Where a right of way is acquired by condemnation or by conveyance the title acquired is not a fee simple absolute but a fee simple determinable limited by the use for which the land is acquired. Gen.St.1935, 68-413.

Although title acquired by state highway commission by purchase donation, dedication, or condemnation, is not a fee simple absolute, it is an appropriation sufficient to support an action on implied contract for value of property taken. Gen.St.1935, 68-413.

The state highway commission may maintain an action for the removal of encroachments and obstructions on state highways. Gen.St.1935, 68-413.

1. Where a county has appropriated land for a highway, without having obtained the title thereto by formal condemnation or otherwise, the landowner may waive the formal condemnation and may sue upon an implied contract for the value of the property taken.

2. The nature of a cause of action, whether based on tort or implied contract is to be determined from the allegations of the petition. In case of doubt the words appropriate to an action in tort will be disregarded, and the action will be construed as one on quasi contract.

3. The State Highway Commission may maintain an action for the removal of encroachments and obstructions upon the state highways.

Appeal from District Court, Wyandotte County, Division No. 2; Willard M. Benton, Judge.

Action by the State Highway Commission against Michael Puskarich and wife, and others, to compel the removal of an obstruction to a state highway. Judgment for plaintiff, and defendants appeal.

See also, Kan., 83 P.2d 131.

Louis R. Gates, of Kansas City, for appellants.

Lester M. Goodell, Asst. Atty. Gen., Harwood Shoemaker, of Topeka Woodrow B. Morris, of Oxford, and Otho W. Lomax, of Topeka, for appellee.

ALLEN Justice.

This is an action to compel the removal of an obstruction to a state highway in Wyandotte county. From a judgment in favor of plaintiff, defendants bring this appeal.

The land in question lies immediately north of and abuts on Reidy road, now designated as a part of State Highway No. 30, and runs 40 rods east and west and 32 rods north and south.

In 1925 the Board of Commissioners of Wyandotte county undertook to widen and improve Reidy Road. This road runs east and west, and was originally 60 feet in width--30 feet on each side of the section line. To acquire the additional land for this improvement, formal condemnation was not asked by the county but the affected landowners were allowed to file claims for the land appropriated and damage suffered. Mike Puskarich, the owner of premises now in dispute, filed a claim wherein he asked for damages for the widening of Reidy Road and that "The tract taken being about 47 1/2 feet wide and forty (40) rods long East and West, that the value of the land taken was and is a $1000.00, that the value of building thereon and appropriated by said Board of County Commissioners is $10,500 that the damage to the land left is $1000.00 that there were trees on said strip of ground thus taken of the value of about $400.00 or a total damage to the said Mike Puskarich of $12,900.00." The claim was duly verified.

Thereafter, Puskarich filed a suit against the Board of County Commissioners, the petition containing the same recitals as the claim. On March 11, 1928, judgment was entered for Puskarich in the sum of $3,495.

The petition in the present action sets up the foregoing facts: alleges the payment to Puskarich of the sum of $3,495 "was a clear intention to dedicate the additional 47 1/2 feet across his tract to public use, in addition to the 30 foot highway previously existing," and that the public accepted and has used the additional width since as a public highway; alleges the adoption and designation of Reidy Road as State Highway No. 30; that defendants maintain a large brick building 60 by 40 feet in size which encroaches a distance of 56 feet upon the highway; that the maintenance of this structure is unlawful appropriation of public property for private use, interferes with the public use of the highway, constitutes a nuisance, and asks that defendant be compelled to remove the same.

The referee appointed by the court to hear and determine the cause, Hon. Arthur J. Stanley, Sr., returned findings of fact and conclusions of law. The referee found that Reidy Road in Wyandotte county, Kansas, on and prior to 1920 was a regularly established public road, extending eastward and westward, and dedicated to a width of sixty feet, thirty feet thereof being on the south side of the section line bounding the Puskarich property, described in admission number two, and thirty feet on the north side of said section line, being the said south boundary line of the above described tract, throughout its full length east and west. In 1925, and beginning in August of said year and continuing thereafter until about December, the Board of County Commissioners of Wyandotte County, Kansas, graded the Reidy Road along the southerly side of the Puskarich property and cut the grade thereof at about the center of the south line of said property, nine feet from what it had been prior thereto, and thereafter said roadway was paved, the paving being about the center of the sixty foot road, said paving being completed in September, 1925.

In his conclusions the referee found that, "The petition in cause No. 31315--A, entitled 'Mike Puskarich v. Board of County Commissioners of Wyandotte County, Kansas,' should be construed an action excontractu, on the implied contract that the defendant would pay value for the property appropriated for public use. Smith v. McCarthy, 39 Kan. 308, 18 P. 204; Missouri, K. & T. Ry. Co. v. Hutchings, Sealy & Co., 78 Kan. 758 loc. cit. 772, 773, 99 P. 230; Delaney v. Implement Co., 79 Kan. 126, 98 P. 781; Douglass v. Loftus, Adm'rx, 85 Kan. 720, 119 P. 74, L.R.A.1915B, 797, Ann.Cas.1913A, 378; Isham v. Board of County Com'rs, 126 Kan. 6, 266 P. 655."

That in the settlement and judgment of that case the County of Wyandotte...