Sutton v. Frazier

• Decision Date: 10 May 1958
• Docket Number: No. 40870,40870
• Parties: O. A. SUTTON, Appellant, v. Ray FRAZIER, Joseph E. Newman, Frank Conner and Durl T. Spangler, Appellees.
• Court: Kansas Supreme Court

Page 338

325 P.2d 338

183 Kan. 33

O. A. SUTTON, Appellant, v. Ray FRAZIER, Joseph E. Newman, Frank Conner and Durl T Spangler, Appellees.

No. 40870.

Supreme Court of Kansas.

May 10, 1958.

Rehearing Denied Oct. 1, 1958.

Syllabus by the Court

1. In an eminent domain proceeding conducted by an improvement district to acquire tracts of land, for the purpose of constructing and operating a sewage disposal plant and to provide means of ingress and egress to and from the same and to provide a right of way for a sewer main to and from said plant, pursuant to authority granted in G.S.1949, 19-2765, and in accordance with the procedure prescribed in G.S.1949, 26-101, it is held: That the improvement district did not acquire title to the minerals underlying such tracts of land, and that oil and gas leases executed by the landowners from whom said tracts were taken by condemnation, subject to the rights of the improvement district, are valid and subsisting leases for the oil and gas underlying said tracts.

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 condemner.

3. 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.

4. An eminent domain proceeding is a special statutory proceeding and is not a civil action covered by the code of civil procedure. The proceeding is administrative rather than judicial, and does not provide a forum for litigation of the right to exercise the power of eminent domain nor the extent thereof.

5. In an eminent domain proceeding unless the statutes authorize the condemning authority to take the title to real property in fee simple, it is clear that no language in the record of such proceeding can enlarge or extend the power of the condemning authority beyond the limits prescribed by law.

6. G.S.1949, 19-2765, which empowers an improvement district to take private property for public use by exercise of the right of eminent domain, is construed to grant no power to take the minerals in place underlying tracts of land condemned for the lawful corporate purposes of the improvement district. The procedure to be followed by an improvement district in the exercise of its right of eminent domain is outlined in G.S.1949, 26-101. This statute contains no grant of power.

7. In an eminent domain proceeding conducted in accordance with G.S.1949, 26-101, which does not provide for notice to the landowners of the filing of the petition in condemnation, where the only notice the landowners received resulted from the required publication of notice of the appraisers' hearing, and where neither such notice nor the appraisers' report disclosed an attempt by the condemning authority to acquire any interest in the minerals or any title in fee simple to the land condemned, it is held: That the landowners are not estopped from asserting ownership to the minerals in place by reason of their acceptance of the award, and for the reasons fully stated in the opinion, there is no estoppel by judgment.

8. In an eminent domain proceeding the report of the appraisers must show what is taken, and what the landowners part with. Nothing is taken by implication or intendment, and the landowners may rely implicitly on the report filed which becomes the evidence and the only evidence of the commissioners' doings.

Paul R. Kitch, Wichita, argued the cause, and Homer V. Gooing, Wayne Coulson, Dale M. Stucky, Donald R. Newkirk, Robert J. Hill, Gerrit H. Wormhoudt, Theodore C. Geisert and Philip Kassebaum, Wichita, were with him on the briefs for appellant.

Arthur W. Skaer, J., Wichita, argued the cause, and W. Getto McDonald, William Tinker, Hugh P. Quinn, William Porter, John E. Lancelot and Alvin D. Herrington, Wichita, were with him on the briefs for appellee, Joseph E. Newman.

George B. Collins, Oliver H. Hughes, Robert Martin, K. W. Pringle, Jr., W. F. Schell and Thomas M. Burns, Wichita, were on the briefs for appellee, Durl T. Spangler.

Lester L. Morris, Verne M. Laing, Ferd E. Evans, Jr., Ralph R. Brock and J. Edward Taylor, Jr., Wichita, for Sunflower Improvement Dist., as amici curiae.

SCHROEDER, Justice.

The question presented on this appeal is whether an improvement district empowered to condemn private property by G.S.1949, 19-2765, for its lawful corporate purposes acquires the fee simple title to the land condemned, including the minerals underlying such land, in proceedings conducted pursuant to the provisions of G.S.1949, 26-101.

Appellant, O. A. Sutton, the plaintiff below, holds oil and gas leases executed by the owners of several adjacent tracts of land subject to the rights of the Sunflower Improvement District. Appellee, Joseph E. Newman, holds an oil and gas lease executed by the condemning authority, Sunflower Improvement District, and covering a part of the same tracts upon which Sutton claims leases.

Sutton appeals from a decree dissolving his restraining order and denying his request for injunctive relief against Newman, and his oil well drillers, Frazier and Conner, appellees, from continuing the drilling of a test well for oil and gas upon the premises condemned.

The case was heard by the trial court upon an agreed statement of facts, the material facts being as follows: In September, 1951, the Sunflower Improvement District, a municipal corporation, hereafter called Sunflower, filed in the district court of Sedgwick County a petition seeking the appointment of commissioners to assess the value of land to be taken and to assess damages. The petition alleged that the taking was necessary '* * * for the purpose of constructing and operating a sewage disposal plant and to provide means of ingress and egress to and from the same and to provide a right-of-way for a sewer main or sewer mains to and from said plant.' The petition alleged 'That it is necessary to take said lands described above in fee for public purposes.' Condemnation proceedings were conducted pursuant to G.S.1949, 26-101. The district court found in its order appointing commissioners that all statements contained in the petition were true; that Sunflower had power to take private property for public use by exercise of the right of eminent domain; and that it was necessary for Sunflower to acquire by condemnation certain lands for the exercise of its lawful corporate purposes, which were specifically described as set forth in the petition. After notice and hearing the commissioners filed their report. Their report described three tracts of land as set forth in the petition and opposite the description the commissioners set out the several awards in the total sum of $3,144.50. The commissioners' notice of hearing stated the purpose of the taking as in the petition, but did not make any statement as to the estate to be taken. The report of the commissioners did not state the purpose of the taking but recited that the owners of the property taken were awarded the sums of money set forth 'as damages for the lands taken, which damages include the value of the lands taken and other damages done to the owners, * * *'.

The property consisted of three tracts, two in the center of the Northwest Quarter of Section 32, Township 28 South, Range 1 East, consisting of approximately two acres. One tract is on the south half of the quarter section and the other on the north half, there being two condemnees. The third tract is a strip 20 feet wide running from the two tracts along the north side of the east-west dividing line between the two eighties to the east line of the quarter.

Sunflower then filed a petition for confirmation of the report of the commissioners following which the district court confirmed and approved the actions taken in the condemnation proceeding, after having specifically found that no notice of the hearing for confirmation was necessary to the landowners. The order further recited that title and right to possession of the described lands '* * * have vested and are hereby confirmed in the Sunflower Improvement District, * * *' and further ordered that the county clerk of Sedgwick County, Kansas, remove the '* * * described lands taken in eminent domain from the tax rolls and to note therein that said land is owned by the Sunflower Improvement District, * * *' and used for public use.

More than three years after Sunflower took possession of the condemned land, oil was discovered in the vicinity of said Northwest Quarter. Thereafter, Sutton acquired an oil and gas lease from Marshall covering Marshall's land in the South Half of said Northwest Quarter. Sunflower executed an oil and gas lease to Spangler covering the land condemned in said Northwest Quarter, and Spangler assigned the lease to the appellee, Joseph E. Newman, and his brother, L. B. Newman. Thereafter, Sutton obtained an oil and gas lease from Fager. Sutton's leases from both Fager and Marshall recited that they were executed subject to the rights of Sunflower.

At the time suit was filed Sutton (appellant) had drilled wells adjacent to, but not on the tract condemned, and the appellees were drilling on the Sunflower tract.

The parties stipulated that the court should determine who had title to the minerals underlying the condemned tract and should refuse or grant the injunction depending upon whether or not title to the minerals was or was not in Sunflower.

The pertinent findings of the trial court are set forth in the journal entry as follows:

'2. In its petition filed in said proceedings the Sunflower Improvement District asked for a fee simple title as being necessary for its undertaking; the court found such...