State v. Boicourt Hunting Ass'n
| Decision Date | 09 April 1955 |
| Docket Number | No. 39613,39613 |
| Citation | 282 P.2d 395,177 Kan. 637 |
| Parties | STATE of Kansas, Appellee, v. BOICOURT HUNTING ASSOCIATION, a Corporation, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. A condemnation proceeding instituted udner the provisions of G.S.1949, Ch. 26, Art. 2, is a special statutory proceeding, the procedure in such a case is that prescribed in such chapter and, prior to the taking of an appeal as therein authorized, the provisions thereof neither contemplate nor comprehend the filing of pleadings challenging the validity of the condemnation or the right to appropriate the land involved in the proceeding.
2. The record in a proceeding of the character described in the first paragraph of this syllabus examined, and held, that under the facts, conditions and circumstances set forth in the opinion, the landowners' answer and cross-petition, seeking injunctive relief, was properly stricken from the files of such proceeding upon the condemner's motion.
Douglas Hudson, Fort Scott, argued the cause, and Howard Hudson and Douglas G. Hudson, Fort Scott, and Robert Wagstaff, Kansas City, were with him on the briefs, for appellant.
Paul Wilson, Asst. Atty. Gen., argued the cause, and Harold R. Fatzer, Atty. Gen., Robert E. Hoffman, Noel Mullendore, John H. Morse and Harry C. Blaker, Asst. Attys. Gen., were with him on the briefs, for appellee.
This is an appeal from rulings made in a condemnation proceeding in which an answer and cross-petition seeking injunctive relief, were stricken from the files and a temporary restraining order theretofore issued was set aside and dissolved.
On April 5, 1954, pursuant to G.S.1949, 32-213, and in full and complete compliance with G.S.1949, 26-201, a petition, signed by Harold R. Fatzer, Attorney General of the State, titled
'In the Matter of the Petition of the State of Kansas for the Appointment of Commissioners to Appraise and Assess Damages by Reason of the Condemnation of Certain Lands, Hereinafter Described, for Public Use.'
and addressed
'To the Honorable Harry W. Fisher, Judge of the District Court of the County of Linn, State of Kansas.'
was presented to such judge asking for the condemnation and appropriation of tracts of lands belonging to numerous landowners, including Boicourt Hunting Association, a corporation, hereinafter referred to as the Association.
The petition is lengthy and, by reason of the issues presented on appeal, does not require extended reference. In a general way it may be stated it contains allegations disclosing that the Forestry, Fish and Game Commission of the State has the power and authority to condemn and in the due and reasonable exercise of its judgment has determined and ordered that it is necessary to take, appropriate and acquire the lands described in the petition, including those belonging to the Association, for public use and the use of the State of Kansas as a state game refuge, public forestry, recreational grounds and park; numerous other recitals disclosing the commissioners' right, power and authority to maintain and conclude the condemnation proceeding initiated by its presentation in the manner aforesaid; and then prays for the appointment of three commissioners to view and make an appraisement of the value of the tracts of land therein described, including all rights appertaining thereto, and an assessment of the damages for taking appropriation and condemnation thereof.
For some reason, not disclosed by the record but respecting which there is no controversy or dispute on appeal, the foregoing petition was presented to and considered by the Honorable M. K. Hoag, Judge pro tem., of the District Court of Linn County, on April 6, 1954, who entered an order appointing three commissioners to view and appraise the tracts of real estate sought to be condemned and directing such commissioners to make a full and complete report of their appraisement of such lands and assessment of damages, in writing under oath, to the court without unnecessary delay.
Some fourteen days later, on April 20, 1954, while the commissioners appointed, as aforesaid, were proceeding to view and appraise the lands sought to be condemned, but before any appraisal report with respect thereto had been filed by them, the Association made its appearance in the condemnation proceeding and filed a verified answer and cross-petition in the office of the clerk of the District Court of Linn County, asking for equitable relief. The answer controverts all material allegations of the petition and, in particular, denies its allegations that the condemnation proceeding sought to be instituted by its presentation is authorized by the laws of the State of Kansas or that its purpose is to acquire land to devote to a public use. The cross-petition asserts the Association is the owner of certain tracts of land sought to be condemned; states the purpose of institution of the contemplated condemnation on the part of the Forestry, Fish and Game Commission is to acquire land for the establishment of public hunting and shooting grounds upon which bird life and other forms of wildlife and game may be hunted and destroyed; denies the laws of Kansas authorize the taking of private property through condemnation by the Commission for such purpose; denies the establishing and maintaining of a public hunting and shooting ground is a public purpose in furtherance of which the power of eminent domain may be constitutionally exercised; challenges the validity, under the Constitutions of the United States and the State of Kansas, of the condemnation of the Association's property for a purpose which is not a public purpose; avers the commissioners are proceeding to view and appraise the Association's land and that upon the filing of the appraisal report, which is imminent, it will be wrongfully and unlawfully deprived of its right and title to real property; charges that the Association has no adequate remedy at law; and finally prays for an injunction forever restraining the alleged unlawful and unconstitutional condemnation and a temporary injunction restraining any further proceeding which would deprive the Association of title to its real property during the pendency of the condemnation proceeding and prior to a final resolution on the merits of the issues sought to be raised.
Following the filing of its answer and cross-petition the Association obtained a temporary restraining order from the probate judge of Linn County prohibiting any further action in the condemnation proceeding until its prayer for a temporary injunction could be heard. Thereafter the State, through its statutory representative, the Attorney General, and other attorneys on behalf of the condemners, filed a motion in the office of the Clerk of the District Court asking that the motion filed by the Association in the condemnation proceeding be stricken from the files, that the restraining order issued by the probate judge be set aside, and that all relief by injunction in such proceeding be denied, for reasons therein stated, which motion so far as here pertinent, reads:
'(a) That the Answer and Cross-Petition as filed herein by the Boicourt Hunting Association are in contravention of G.S.1949, 60-3823, and therefore are prohibited from being filed in this proceeding.
'(b) That no action has been commenced or is pending in which relief by injunction or restraining order may be had.
In due time the foregoing motion was presented to the Honorable Harry W. Fisher, Judge of the District Court of Linn County, who took it under advisement and then, on June 24, 1954, executed an order and decree directing that the Association's answer and cross-petition should be stricken from the proceeding, that the temporary restraining order, theretofore in effect, should be dissolved, and that all injunctive relief requested in such pleading be denied. On the same day the Association gave notice of its intention to appeal from the order appointing the commissioners to appraise its land in the condemnation proceeding, also the orders made on June 24, 1954, and now seeks review of such orders and rulings in this court.
From what has been related it becomes apparent that we are not here concerned with the merits of a condemnation proceeding or a separate action involving the rights of the parties thereunder but with appellate issues respecting the procedure to be followed in disposing of such a proceeding when properly instituted and conducted under the provisions of G.S.1949, 26-201 and 26-202, the first of which sections, we pause to note, specifically provides that a proceeding to obtain the relief contemplated by its terms is commenced by the presentation of a written application to the Judge of the District Court of the county in which the land involved is situated, not to the district court itself.
That the issue presented for appellate review by the record is the one just stated is inferentially, if not expressly, conceded by appellant in its own brief where, although the merits of the proceeding are raised and strenuously argued, the following statement appears:
'In the last analysis, the only procedural question for this Court to determine is the propriety of challenging the validity of the condemnation and of the right to appropriate in the actual condemnation proceeding itself. * * *'
The position taken by appellant on the question just stated is that the validity of the condemnation and the right to appropriate its lands can be...
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