Steck v. City of Wichita

• Decision Date: 07 April 1956
• Docket Number: No. 39829,39829
• Parties: Richard STECK, Appellee and Cross-Appellant, v. The CITY OF WICHITA, a Municipal Corporation, Appellant and Cross-Appellee.
• Court: Kansas Supreme Court

Page 1068

295 P.2d 1068

179 Kan. 305

Richard STECK, Appellee and Cross-Appellant, v. The CITY OF WICHITA, a Municipal Corporation, Appellant and Cross-Appellee.

No. 39829.

Supreme Court of Kansas.

April 7, 1956.

Rehearing Denied May 8, 1956.

Syllabus by the Court

1. In a condemnation proceeding under the power of eminent domain, involving the Wichita-Valley Center Flood Control Project along the Little Arkansas River north and slightly west of the city of Wichita, under the facts and circumstances set out in the opinion, where there was an appeal to the district court from the award of the appraisers by the city of Wichita, followed by a cross-appeal of the landowner, the record on the consolidated appeals is examined and it is held, the trial court did not err in (1) rendering judgment on the verdict of the jury; (2) overruling the motions for new trial of both parties; (3) refusing to set aside the verdict as excessive; (4) excluding evidence of the value of the land as of the date of trial; and (5) admitting only evidence of value on the date of 'taking.'

2. In the particular case described above it is further held: Where at the time of condemnation there was residential development immediately adjacent on two sides of the land previously used for farming purposes only, with an additional factor of a reasonable possibility of joining on to the sewer system of Wichita, it was not error for the trial court to submit to the jury, to be considered by it in determining the highest, best, and most advantageous use to which the land is adaptable, the suitability of the land for future residential development.

3. Mere technical errors during the process of a trial will not cause a reversal unless the record reflects that the complaining party has sustained the burden of showing that his case has been materially affected or prejudiced thereby.

4. In connection with a condemnation proceeding one of the purposes of special questions is to determine facts which are essential elements of the result reflected in a general verdict and to test the soundness thereof.

5. In opening statements counsel may state what the evidence will show and the theory of law and fact to be relied on.

6. On appeal the function of this court is not to determine comparative weight to be given highly conflicting oral testimony for the reason that such is the province of the jury in the court below and once such determination has been made in that manner, this court will not disturb it.

7. Where a party raises questions involving instructions, all of the instructions should be fully set out in the record because an instruction can be reviewed only when others which may qualify its intent and effect are made a part of the record unless there is a clear and prejudicial mistatement of the law contained in a particular instruction.

8. Deposit by a city of the amount of an award by appraisers in a condemnation proceeding merely gives the right of possession and is not necessary to determine the 'taking' of the land. A city may appeal and then pay the money in at any time, but an immediate payment of the award may nullify the city's right to appeal.

9. Where a landowner has not been divested of possession of land and a condemner has not appropriated or entered into possession, there can be no interest recovered on the verdict and judgment.

Dale M. Stucky, Wichita, argued the cause, and Fred W. Aley, Howard T. Fleeson, Homer V. Gooing, Wayne Coulson, Paul R. Kitch, Donald R. Newkirk, Robert J. Hill, Gerrit H. Wormhoudt, and Theodore C. Geisert, Wichita, were with him on the briefs for appellant and cross-appellee.

J. Francis Hesse, Wichita, argued the cause, and W. D. Jochems, J. Wirth Sargent, Emmet A. Blaes, Roetzel Jochems, Robert G. Braden, James W. Sargent, S. C. Durkin, Stanley E. Wisdom, Cecil E. Merkel, and Vincent L. Bogart, Wichita, were with him on the briefs for appellee and cross-appellant.

ROBB, Justice.

This was an appeal from a verdict and judgment in the trial court where both appellant and appellee had appealed and cross-appealed from an award of appraisers in a condemnation proceeding under the power of eminent domain. The appeals were consolidated for jury trial and remained consolidated on appeal to this court.

The record disclosed that appellee owned 80.97 acres of land north and a little west of the city of Wichita; the acreage was rectangular in shape, raw and unimproved; the Little Arkansas River made a hairpin bend in the east side of the rectangle and there was a wooded section on each bank; underbrush of various densities was present in the wooded sections; appellee's improvements were slightly west of the northeast corner of the parcel of land and the only use to which the land had been put was that of farming; as early as 1944 there had been a government survey in connection with the Wichita-Valley Center Flood Control Project, but the boundaries of the project were changed from time to time until it was finally decided that 38.11 acres of appellee's land were necessary to be taken by the city of Wichita; in considering the use of the 80.97 acres of land, 20.70 acres were actual river bottom, trees and farm land, but the remainder was very good bottom land which averaged thirty-one bushels of wheat to the acre in 1953; all but 3.52 acres were inundated by the record flood of 1945; there was a sand road along the north side, but there were no other public roads on or around appellee's land; of the 38.11 acres taken, 7.50 were river bed, 9.44 were covered by timber and underbrush to different stages of density and were subject to a maximum ten feet of water at flood stage, 9.72 acres were subject to a maximum overflow of five feet, and only 2.96 acres of the remaining land were not subject to flooding.

In 1949 after construction had begun in regard to work on the overall flood control project on land other than appellee's and more especially during 1951 and the early part of 1952, residential development began immediately east, southeast, south, and southwest of the land in question.

In discussing this appeal we shall hereinafter refer to the appellant as the city and to the appellee as the landowner.

On February 6, 1952, the city filed a petition reciting its adoption of a resolution on May 9, 1951, which had directed an engineering survey and the filing with the city clerk of such survey with description of the land to be taken including appellee's 38.11 acres; the resolution had declared the condemnation necessary and had asked for appointment of appraisers to proceed under the pertinent provisions of G.S.1949, Article 2, Chapter 26; Article 33, Chapter 19. Three commissioners were appointed February 6, 1952, and on October 7, 1952, they made a total award to the landowner in the sum of $24,531.50 from which the city appealed on November 4, 1952, and the landowner subsequently appealed on November 6, 1952. The causes were consolidated for trial in the district court, and they have come to this court in consolidated form.

No challenge was made by either party to the pleadings in the record before us, they were not abstracted, and we will not hereafter refer to them. There were stipulations of fact made from time to time, and we will mention the pertinent ones as we proceed.

Counsel for the landowner in his opening statement referred to sales of one half acre tracts immediately adjoining the land in question on the south for $1,000 to $1,250 as early as September, 1952. The city objected to this and moved for a mistrial because of prejudice to its cause before the jury, which objection was not directly ruled upon except that mention of the amount was to be avoided and evidence regarding the parcels would be ruled on later. It is a common and well-established rule that an opening statement merely outlines what the party intends to show by his evidence, but it must be within the confines of his pleadings. Since the pleadings are absent from the record, we cannot speculate as to what they contain.

At this point it should be noted that no special questions were submitted to the jury and many of the points of error raised by the parties are impossible of determination here because there is no way to ascertain how the jury arrived at its general verdict, what elements went into its make-up, or the effect of certain evidence, statements, or actions of parties and counsel during the trial. We recognize the importance of this case but nevertheless we are not permitted to go outside the record in this, or any other case, in order to make final determination thereof. There are numerous decisions in our reports where this court found technical error in and during trials of both civil and criminal cases, but failure to show that such error materially affected or prejudiced the rights of the party complaining made it necessary to hold that the ultimate outcome in the trial court cannot be disturbed by this court on appeal. G.S.1949, 60-3317; Allen v. Bowling, 173 Kan. 485, 249 P.2d 679; In re Estate of Lasswell, 178 Kan. 48, 50, 283 P.2d 247, and citations therein contained.

It would avail nothing in this case to determine that the trial court may have erred and then be unable to find from the record any prejudice to the cause of the complaining party. In Long v. Shafer, 162 Kan. 21, 174 P.2d 88, it was said,

'One of the purposes in submitting special questions is to determine the facts which are essential elements of the result reflected in the general verdict and to test the soundness of that verdict.' 162 Kan. at page 32, 174 P.2d at page 96.

It is interesting to note that in the Long case the opening statement of counsel also was under attack and this court there went further than we are herein when it said,

'While it may be conceded that counsel may state the facts and the theory of law and fact relied on, in the instant case counsel undertook to tell the jury what the court would instruct them to...