Theiss v. City of Hutchinson

• Decision Date: 08 June 1946
• Docket Number: 36541-36546.
• Citation: 169 P.2d 615,161 Kan. 502
• Parties: THEISS v. CITY OF HUTCHINSON, and five other cases.
• Court: Kansas Supreme Court

169 P.2d 615

161 Kan. 502

THEISS v. CITY OF HUTCHINSON, and five other cases.

Nos. 36541-36546.

Supreme Court of Kansas

June 8, 1946

Appeal from District Court, Reno County; Clark A. Wallace, Judge pro tem.

Actions consolidated on appeal by A. C. Theiss, R. H. Welch, J. M Teter, C. D. Wagoner, P. L. Wagoner, and A. E. Albertson against the City of Hutchinson, to recover damages for vacation of road. From judgment for defendant in each case the plaintiffs appeal.

Reversed and actions remanded with directions.

Syllabus by the Court.

The record in six actions consolidated on appeal involving the right of landowners to recover damages from a city alleged to have resulted from the vacation of roads after the city condemned lands for municipal airport purposes, examined, and held: (a) A written contract of the parties, material portions of which are set forth in the opinion, was properly construed as not imposing liability on the city in excess of actionable damages, if any, for the vacation of roads; (b) judgment for the city was improperly rendered on its motion for judgment on pleadings and files and on evidence adduced in support of such motion, over objection of the landowners, where such evidence pertained to the merits of the actions; and (c) the actions are remanded with directions to try them in accordance with views expressed in the opinion.

Walter F. Jones and J. N. Tincher, both of Hutchinson (Clyde Raleigh, J. N. Tincher, Jr., J. Richards Hunter, and Robert Y. Jones, Jr., all of Hutchinson, and W. L. Cunningham, of Arkansas City, on the briefs), for appellants.

Max Wyman, of Hutchinson (Eugene A. White, City Atty., and Erskine Wyman, both of Hutchinson, on the brief), for appellee.

WEDELL Justice.

Six actions of landowners to recover damages from the city of Hutchinson for the vacation of roads outside of its corporate limits are by agreement consolidated on appeal. Judgment was for the city in each of the cases and the landowners have appealed.

None of the actions was tried on its merits in the district court. All appeals are from judgments rendered on the same motion. In order to understand the nature of the actions and the motion and judgment rendered thereon it is necessary to narrate certain facts and circumstances preceding the judgment.

During the war the navy department desired to acquire a lease on the municipal airport of the city of Hutchinson provided the city would enlarge it sufficiently to accommodate the government's needs; the city accordingly instituted two condemnation proceedings in the district court in order to acquire the necessary additional land; it appears the proceedings were instituted pursuant to the provisions of G.S.1943 Supp. 3-113 et seq.; the district court appointed the same appraisers in each condemnation case; land was not taken from the farms of each of the appellants; it appears parties whose lands were taken have been paid therefor whith the possible exception of a small portion of the land taken from the appellant W. E. Albertson; as a result of the land being condemned certain roads needed to be vacated and promptly closed to travel; (by what particular proceeding they were finally vacated, if legally vacated, we do not know) other roads were to be opened and promptly constructed and improved to accommodate the appellant landowners; it appears appellants claimed their property, and some of them claimed their business, would be damaged by the vacation of certain roads; at any rate in order that the project might proceed without objection or interference and be completed in the earliest possible time the parties agreed to cooperate to the fullest possible extent; in order to facilitate the determination of the amount of damage, if any, which appellants might suffer by the vacation of roads, the board of county commissioners of Reno county, the city of Hutchinson and the appellant landowners entered into a written agreement; the contract described the roads to be vacated and the roads to be opened; other pertinent provisions of the contract read:

'Whereas, certain property owners owning property in said area will be effected by said vacations; and

'Whereas, condemnation proceedings instituted for the purpose of acquiring land in Sections Three (3), Four (4), and Nine (9) have not been completed, and it is the desire of all of the parties hereto to arrange for the completion of said condemnation proceedings and the vacation of said highways and the opening of new highways,

'Now, Therefore, this agreement made and entered into this 5th day of June, 1944, by and between the Board of County Commissioners of Reno County, Kansas, hereinafter designated as 'Party of the First Part'; The City of Hutchinson, Kansas, hereinafter designated 'Party of the Second Part; and [appellant landowners, naming them] hereinafter designated as 'Parties of the Third Part',

'Witnesseth:

' For the purpose of facilitating the determination of the amount of damages, if any, sustained by Parties of the Third Part in the enlargement and improvement of The Hutchinson Municipal Airport and the condemnation of additional land therefore requiring the vacation of certain highways, it is agreed that C. H. Bailey, Eskel Swanson, and Bert Wilson shall constitute a Board of Commissioners to hear the evidence offered by the Parties hereto as to the damage occasioned or caused to Third Parties, their properties and business by such condemnation proceedings and vacation of highways. The same Commissioners shall meet at an early date in the Court Room of the Court House in the City of Hutchinson at a time to be designated by them for the purpose of hearing the evidence on the question of damages claimed by Parties of the Third Part, and after hearing such evidence, said Commissioners shall make a report of their finding as to the amount of damages, if any, sustained by each of the Parties of the Third Part. Such findings shall be made in writing and filed with the appraisers appointed by the Court in the condemnation proceedings in Case No. 1577, and such report shall be accepted by said appraisers as conclusive evidence of the damage, if any, sustained by Parties of the Third Part.

'2. This agreement shall not operate to deprive Second Party or any of Third Parties of the right to appeal to the District

Court of Reno County from the award of damages made by said appraisers as provided in this agreement.

'3. Second Party agrees that it will procure good and valid petitions for the opening of new highways as follows: [Description.]

'4. In the opening of said highways described in the last preceding paragraph no benefit district shall be established whereby any of the property of the Third Parties shall be assessed any portion of the cost and expense of opening said highways, but the cost, expense and damage thereof shall be paid in such a manner as may be determined by First and Second Parties.

'5. The proceedings for the opening of said highways shall proceed simultaneously with the vacation of the highways hereinbefore described, and the highways so opening shall be constructed and improved and placed in good passable condition promptly and without delay, without cost or expense to Third Parties.

'6. The terms and provisions of this agreement shall be carried out expeditiously without delay and all Parties hereto agree to cooperate to the fullest possible extent in order that the terms and provisions of this agreement shall be carried out and completed at the earliest possible date.' (Our emphasis.)

The contract was made a part of the files in the first condemnation case instituted by the city; the contractual board of commissioners made and filed their report of damages with the appraisers appointed by the court in the condemnation cases; the latter accepted the report stating however, they did so only by reason of the fact the contract of the parties made the report of the contractual commissioners binding on them with respect to the damages, if any; the city appealed to the district court from each of the six awards; the appeals were docketed separately in the district court; while the record here reveals no order we are advised the district court, in response to the city's motion, directed each of the landowners to file a separate bill of particulars setting forth the damages claimed; they complied; the city filed no answer to any bill of particulars; it filed a motion for judgment in its favor in each of the six...