Urban Renewal Agency of Wichita, Kan., Metropolitan Area v. Tate

• Decision Date: 07 May 1966
• Docket Number: No. 44392,44392
• Citation: 196 Kan. 654,414 P.2d 28
• Parties: The URBAN RENEWAL AGENCY OF the WICHITA, KANSAS, METROPOLITAN AREA, Appellant, v. Elizabeth TATE, Appellee.
• Court: Kansas Supreme Court

Page 28

414 P.2d 28

196 Kan. 654

The URBAN RENEWAL AGENCY OF the WICHITA, KANSAS METROPOLITAN AREA, Appellant, v. Elizabeth TATE, Appellee.

No. 44392.

Supreme Court of Kansas.

May 7, 1966.

Syllabus by the Court

1. On appeal in a condemnation action, where the only opinion testimony as to the market value of the property condemned was that of the landowner who placed the market value of the property somewhere between $8,000 and $9,000, it is held: The trial court erred in directing the jury to return a verdict placing the market value of the landowner's property at a figure of not less than $8,000 and not more than $9,000.

2. In an action to determine the value of property condemned, the opinion of a witness as to the value of such property at the time it is condemned will not be deemed conclusive, but the jury may consider such opinion in connection with all the other testimony in the case, and then determine for itself from all the testimony the value of such property.

Ronald H. Rogg, Wichita, argued the cause, and John R. Blair, Don Matlack and Richard V. Foote, Wichita, were with him on the brief, for appellant.

Russell Shultz, Wichita, argued the cause, and Larry Kirby, Wichita, was with him on the brief, for appellee.

SCHROEDER, Justice.

This is an appeal in a condemnation action.

The underlying question is whether the trial court erred in giving an instruction to the jury which the appellant alleges to be a directed verdict for the landowner.

In the year 1958 the Urban Renewal Agency of the Wichita, Kansas, Metropolitan Area (appellant) by and through its agents and employees, informed Elizabeth Tate (appellee), the landowner herein, that it was going to take her property as a part of an urban renewal project. It was not, however, until December, 1961, when appraisers for the Urban Renewal Agency came by to look at the landowner's property. The date of the taking by the Urban Renewal Agency was February 8, 1962.

Subsequently the landowner appealed from the award of the appraisers, who had been appointed by the court in the condemnation action. The sole issue to be tried to the jury in the condemnation appeal was that of determining the market value of the land and the improvements condemned.

When the condemnation appeal came on for trial in the district court it was tried to a jury with only two witnesses, one witness by the landowner, herself, and one witness by the Urban Renewal Agency.

In her testimony the landowner generally described the real estate and the improvements on it. Her testimony revealed that she purchased four lots in October, 1954, at a price of $200 each. After the purchase she spent some four months cleaning them up, removing trash and debris. She had ten loads of dirt hauled in at a cost of approximately $40, and moved a house trailer on the location which cost $650. She further improved the lots by putting down a water well which cost approximately $100, constructed a summer house containing 689 square feet, and planted flowers, shrubbery and trees. She also commenced the construction of a large house near the front of the lots in 1957. The dimensions of this house were 28 by 32 feet. She testified that she had invested approximately $800 to $1,000 in this house for materials. She also constructed a rock garden at a total cost to her of $200. She further testified she spent a total of 6,300 hours of her own labor improving the premises. An objection was sustained by the trial court when she was asked to place a value on her labor.

The only utility available to the premises was electricity.

The landowner was permitted to testify as to the market value of the premises as improved, which included the house trailer condemned by the Urban Renewal Agency. She said the market value in her opinion was between $8,000 and $9,000.

The witness called by the Urban Renewal Agency was Lisle Morris, who stated his profession to be that of a real estate appraiser. In placing a value upon the premises condemned, he testified as follows:

'Q. Mr. Morris, do you have an opinion as to the value of the property on February 8, 1962, the market value of the property?

'A. I would have an opinion assuming that there had been no additional work done on that east portion.

'Q. And what would your opinion be?

'A. All right, sir. In my opinion the value of the property assuming that it was in essentially the same condition that it was when I made my original inspection, it is my opinion it had a fair market value of $3,200.00.'

The foregoing opinion testimony of Mr. Morris was qualified by the fact that the only time he had occasion to view and appraise the property of the landowner (described as Lots 50, 51, 52 and 53 in Block 19 of Orienta Park Addition to Wichita, Kansas) was in February, 1961. This was one year before the property was taken by condemnation.

The landowner testified she was continually making improvements to the property and building onto both the summer cottage and the house which she was building on the front of the lots. This was necessitated by the fact that she could not sell her property because it was known for several years the Urban Renewal Agency was going to take it; that she had to have a place to live; and that the city health authorities required her to make additions and improvements to comply with the city health laws. Her testimony in substance was that the property had been improved considerably by additional building since the appraisal was made by Mr. Morris.

The fact that there had been considerable change in the premises is confirmed by the testimony of Mr. Morris. When he was shown photographs of the premises made on the date of the taking, he said he did not recognize the premises from some of these photos as he remembered it. On some photos he pointed to additions made to the buildings on the premises, which were not there when he made his appraisal.

The landowner moved to strike all of the testimony of Morris relating to the market value of the property taken because it was purely speculative and too remote.

The trial court overruled the objection and after counsel agreed upon the instructions to be given the court recessed until 9:30 the next morning. Before convening the next morning, the trial court added the instruction here in controversy. It reads in pertinent part:

'You are instructed that the only evidence you have before you as to the market value of the landowner's property on the agreed date of taking, February 8, 1962, is that evidence of the landowner.

'The landowner's evidence as to the market value of her property on the date of taking is that it was worth between $8,000.00 and $9,000.00.

'You are instructed that you will retire to your jury room and return a verdict in favor of the landowner. You will, under the evidence in this case, return a verdict placing the market value of the landowner's property at a figure of not less than $8,000.00 and not more than $9,000.00.'

This instruction came as a surprise to counsel for the respective parties inasmuch as the trial court the previous evening had overruled the landowner's motion to strike the testimony of Mr. Morris. Counsel for the Urban Renewal Agency was, however, permitted to make an objection for the record.

The giving of the goregoing instruction by the trial court, upon its own motion, was in substance a reversal of its previous ruling on the landowner's motion to strike the testimony of Mr. Morris. We shall proceed upon the assumption that the testimony of Mr. Morris was properly stricken from the record.

The question therefore presented is whether under ...