United States v. Kansas City, Kan., No. 3339.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtPHILLIPS, Circuit , and BROADDUS and CHANDLER
Citation159 F.2d 125
PartiesUNITED STATES v. KANSAS CITY, KAN. et al.
Decision Date06 December 1946
Docket NumberNo. 3339.

159 F.2d 125 (1946)

UNITED STATES
v.
KANSAS CITY, KAN. et al.

No. 3339.

Circuit Court of Appeals, Tenth Circuit.

December 6, 1946.


159 F.2d 126
COPYRIGHT MATERIAL OMITTED
159 F.2d 127
Dwight D. Doty, of Washington, D. C. (David L. Bazelon, of Washington, D. C., Peter F. Caldwell, of Topeka, Kan., and Roger P. Marquis, of Washington, D. C., on the brief), for appellant

William Drennan and Alton H. Skinner, both of Kansas City, Kan. (Joseph A. Lynch and Charles W. Lowder, both of Kansas City, Kan., on the brief), for appellees.

Before PHILLIPS, Circuit Judge, and BROADDUS and CHANDLER, District Judges.

BROADDUS, District Judge.

This proceeding was brought in the United States District Court for the District of Kansas at the request of the Secretary of War, to condemn a perpetual easement for construction, operation, maintenance and control of an electric transmission line over the strip of land from a power plant in the State of Missouri to the Sunflower Ordnance Works in Johnson County, Kansas. A portion of the way sought by the action was over the streets, byways and other property of the City of Kansas City, Kansas. The taking was pursuant to Title II of the Second War Powers Act, authorizing the Secretary of War to acquire by condemnation any interest in real estate that might be deemed necessary for war purposes and to dispose of such property by sale or otherwise.1

The procedure of the action conformed to the practice in the District Courts of the State of Kansas, courts of record of such state, as directed by the Act of August 1, 1888, 25 Stat. 357, 40 U.S.C.A. § 258. Under such procedure upon the filing of the petition the judge shall determine the petitioner's power of eminent domain and the necessity for the taking. Upon an affirmative finding on those issues, the judge must appoint appraisers to assess the damage to the owner and other interested parties. The appraisers are required to give adequate notice to all interested parties and at the time and place fixed therein, to view the property and assess the damage caused by the taking. Within thirty days after the filing of appraisement, the petitioner must pay the amount thereof into court, and when such amount is paid, the title and possession vests in the condemnor. G.S.Kan. 26-101. If any interested party be dissatisfied with the appraisement, such party may within thirty days file a notice of appeal with the clerk of the court, and the proceeding is then docketed and tried the same as any other case. G.S.Kan. 26-102.

This appeal involves the right of way secured over the streets and property of the City of Kansas City, Kansas. The substantive question presented is whether, when the designated public authority has

159 F.2d 128
determined the necessity of condemning a perpetual easement for specific public use, the perpetual nature of the easement may be limited to the duration of its use by the condemnor, in this case the United States of America. The City of Kansas City, Kansas challenges the right to consider the question, asserting that the Government has failed to perfect a timely appeal from a ruling of the trial court decisive of such issue in the giving of supplemental instructions to the appraisers, and other rulings of the same tenor

In the course of the action the City applied for, and received, on October 3, 1944, supplemental instructions to the appraisers to the effect that in acquiring the easement the Government secured no assignable interest; that the easement terminated when the Government's use ceased, and that the City therefore was not entitled to any damages. Complying with the ruling it had secured, the City disclaimed any right to damages by reason of the easement sought. Upon a subsequent motion of the Government to set aside the order embracing such instructions, another judge sitting in the case on November 13, 1944 refused to reconsider the supplemental instructions given. There was no appeal from either order. It is urged that the failure to appeal is a bar to consideration of the question though the ruling is embraced within the final entry of judgment from which an appeal was duly perfected.

The appraisers, pursuant to the supplemental instructions and sensible of the City's disclaimer, on August 23, 1945, filed an appraisement in which no damages were allowed the City. The Government filed notice of appeal from the appraisement within the time allowed by the Kansas statute. Upon that appeal, the Government presented in advance of trial the issue of the assignability by the Government of the easement and the court adhered to its former ruling. Thereafter, on March 25, 1946, on a hearing for the ascertainment of the amount of damages, the court found the issues of law to have been determined by its prior order upon the motion for such purpose heard in advance of trial, and that, as the City had disclaimed any right to compensation, there was no question of fact for decision, thereby with due consistency approving its former ruling. From such order this appeal resulted.

We believe the City failed to understand the nature and effect of the supplemental instructions for the appraisers and the subsequent refusal to withdraw such instructions. Under the Kansas Statute, to which the Government was required to conform as nearly as practical, all proceedings prior to appraisers' assessment of damages from the taking are preliminary to the...

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12 practice notes
  • United States v. 3,317.39 ACRES, ETC., JEFFERSON CO., ARK., No. 20467.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 16, 1971
    ...United States, 227 F.2d 659 (9th Cir. 1955); Simmonds v. United States, 199 F.2d 305 (9th Cir. 1952); United States v. Kansas City, Kan., 159 F.2d 125 (10th Cir. 1946); United States v. Sunset Cemetery Co., 132 F.2d 163 (7th Cir. 1942). See also United States v. Miller, supra; United States......
  • Southern Pacific Land Company v. United States, No. 19882.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 18, 1966
    ...272 F.2d 642, 646 (5th Cir. 1959); United States v. State of South Dakota, 212 F.2d 14 (8th Cir. 1954); United States v. Kansas City, 159 F.2d 125, 129 (10th Cir. 1946); and United States v. 6.74 Acres of Land, 148 F.2d 618, 619-620 (5th Cir. 1945). It is no doubt significant that in each i......
  • United States v. Hunting Rights of Swan Lake Hunting Club, No. GC 32-62
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Mississippi
    • December 30, 1964
    ...1186 (1923); Shoemaker v. United States, 147 U.S. 282, 298, 13 S.Ct. 361, 37 L.Ed. 170 (1892); United States v. Kansas City, Kan. et al., 159 F.2d 125, 129 (10th Cir. 1946); United States v. State of Montana, 134 F.2d 194, 196 (9th Cir. 1943), cert. den. 319 U.S. 772, 63 S.Ct. 1438, 87 L.Ed......
  • United States v. State of New York, No. 121
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 2, 1947
    ...interest therein," 50 U.S.C.A. § 171a, thus including, as the State concedes, a fee simple. United States v. Kansas City, Kan., 10 Cir., 159 F.2d 125. As to the extent of judicial review, many precedents state flatly that the legislative or administrative determination of the taking require......
  • Request a trial to view additional results
12 cases
  • United States v. 3,317.39 ACRES, ETC., JEFFERSON CO., ARK., No. 20467.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 16, 1971
    ...United States, 227 F.2d 659 (9th Cir. 1955); Simmonds v. United States, 199 F.2d 305 (9th Cir. 1952); United States v. Kansas City, Kan., 159 F.2d 125 (10th Cir. 1946); United States v. Sunset Cemetery Co., 132 F.2d 163 (7th Cir. 1942). See also United States v. Miller, supra; United States......
  • Southern Pacific Land Company v. United States, No. 19882.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 18, 1966
    ...272 F.2d 642, 646 (5th Cir. 1959); United States v. State of South Dakota, 212 F.2d 14 (8th Cir. 1954); United States v. Kansas City, 159 F.2d 125, 129 (10th Cir. 1946); and United States v. 6.74 Acres of Land, 148 F.2d 618, 619-620 (5th Cir. 1945). It is no doubt significant that in each i......
  • United States v. Hunting Rights of Swan Lake Hunting Club, No. GC 32-62
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Mississippi
    • December 30, 1964
    ...1186 (1923); Shoemaker v. United States, 147 U.S. 282, 298, 13 S.Ct. 361, 37 L.Ed. 170 (1892); United States v. Kansas City, Kan. et al., 159 F.2d 125, 129 (10th Cir. 1946); United States v. State of Montana, 134 F.2d 194, 196 (9th Cir. 1943), cert. den. 319 U.S. 772, 63 S.Ct. 1438, 87 L.Ed......
  • United States v. State of New York, No. 121
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 2, 1947
    ...interest therein," 50 U.S.C.A. § 171a, thus including, as the State concedes, a fee simple. United States v. Kansas City, Kan., 10 Cir., 159 F.2d 125. As to the extent of judicial review, many precedents state flatly that the legislative or administrative determination of the taking require......
  • Request a trial to view additional results

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