Weast v. Budd

• Citation: 349 P.2d 912,186 Kan. 249
• Decision Date: 05 March 1960
• Docket Number: No. 41625,41625
• Parties: Roy E. WEAST, Appellant. v. Bernard T. BUDD, Individually, and City of Parsons, Kansas, a Municipal Corporation, Appellees.
• Court: United States State Supreme Court of Kansas

Page 912

349 P.2d 912

186 Kan. 249

Roy E. WEAST, Appellant. v. Bernard T. BUDD, Individually, and City of Parsons, Kansas,

a Municipal Corporation, Appellees.

No. 41625.

Supreme Court of Kansas.

March 5, 1960.

Syllabus by the Court.

1. An eminent domain proceeding commenced by a municipal corporation is the exercise of a delegated sovereign right and is carried on as a governmental function as distinguished from proprietary, and, in the absence of a statute to the contrary, a municipal corporation is immune from liability for tort arising out of the negligence or misconduct of its officers or employees in the commencement, prosecution or abandonment of such proceeding pursuant to G.S.1949, 26-206.

2. A city manager appointed pursuant to the City-Manager Plan (G.S.1949, 12-1001 et seq.) is a city officer. In the classification of powers his duties are administrative or executive, and are governmental or discretionary as distinct from being ministerial. In the performance of his duties, prescribed by the City-Manager Plan, he is immune from personal liability by reason of misconduct. In the instant case, the conduct alleged to be tortious arose out of the performance of duties prescribed by law and rendered the city manager immune from personal liability.

3. The record in an action by a landowner to recover damages from a city of the first class and the city manager, as a result of the city's commencement and abandonment of an eminent domain proceeding to acquire the plaintiff's entire farm for a water works improvement, is examined and, as more fully set forth in the opinion, it is held: The trial court did not err in sustaining the defendants' motion to strike certain allegations from the second amended petition with respect to items of damage alleged to have been sustained.

Gerald D. Lasswell, Wichita, argued the cause, and Payne H. Ratner, Louise Mattox, Payne H. Ratner, Jr., Cliff W. Ratner, Edmund R. Learned, James R. Barr, Frank W. Hylton and R. R. Barnes, Wichita, were with him on the briefs, for appellant.

Glenn Jones, Parsons, argued the cause and was on the briefs for appellees.

FATZER, Justice.

This was an action to recover damages from the city of Parsons, Kansas, and Bernard T. Budd, the city manager, alleged to have been sustained by the plaintiff as a result of the city's commencement and abandonment of an eminent domain proceeding to take his entire farm for water works improvement. The defendants filed a motion to strike certain allegations of the plaintiff's second amended petition, which was sustained in part, and the plaintiff has appealed.

The allegations of the second amended petition are briefly summarized: On September 18, 1957, pursuant to proper resolution and ordinance and applicable statutes of the state of Kansas, the defendant city commenced an eminent domain proceeding in the district court of Neosho County, to condemn the plaintiff's 100-acre farm, together with other lands, for a water reservoir. Commissioners were appointed by the district court to assess damages for the land to be taken, and, on October 16, 1957, after giving notice to the landowner, met at plaintiff's farm for that purpose. Bernard T. Budd met with the plaintiff and the commissioners at that time.

On November 19, 1957, and within ten days after the commissioners filed their report of appraisement with the clerk of the district court, the city, by resolution pursuant to G.S.1949, 26-206, abandoned the eminent domain proceeding to all of the plaintiffs' farm except a two-acre strip of land.

Between the time of the commencement of the eminent domain proceeding and its abandonment, the plaintiff was told, informed, instructed and directed by Budd that the city was taking and would take his entire farm. The plaintiff relied upon Budd's representations and instructions that he not cut his sorgo crop, which he was then prepared to do, since its value would be included in the commissioners' award; that he immediately remove himself, his family, and his 77 head of cattle from his farm and do no further work on a gas well then being drilled on the farm, all of which resulted in the loss of his sorgo crop destroyed by frost on or about October 20, 1957; loss from the forced sale of his 77 head of cattle because he had no feed for them; loss from being unable to use his growing rye, wheat and barley crops as pasture; loss of the gas well by reason of its caving in because plaintiff's lessee did no further work on it, and expenses incurred in trying to find a place to move. Plaintiff prayed for damages against both defendants in the amount of $3,000 for loss of the sorgo crop, $2,400 for loss of rye, wheat and barley pasture, $8,700 for loss from the sale of his cattle, $10,000 for loss of the gas well, and $500 for expenses incurred in trying to find a place to move.

The allegations stricken pertain to the loss of the sorgo crop, loss of the rye, wheat and barley pasture, and loss by the forced sale of the cattle. The motion was overruled as to both defendants with respect to expenses incurred by the plaintiff in finding a place to relocate, and the allegation concerning the loss of the gas well was sustained as to Budd but overruled as to the city.

Since the allegations stricken involve the merits of the action or some part thereof, the order sustaining the motion to strike is an appealable order. This court has consistently held that where allegations in a petition are stricken on order of the trial court, which involve the merits of the cause of action, the order to strike is an appealable order and is equivalent to an order sustaining a demurrer (Norman v. Atchison, T. & S. F. Railway Co., 101 Kan. 678, 168 P. 830; Trusler Grain Co. v. Earlton Grange Co-operative Association, 109 Kan. 293, 198 P. 964; Fox v. Ryan, 121 Kan. 172, 246 P. 520; G. S. Johnson Co. v. N. Sauer Milling Co., 148 Kan. 861, 84 P.2d 934; Pulliam v. Pulliam, 163 Kan. 497, 183 P.2d 220, 1 A.L.R.2d 418). See, also, the extensive note of the Kansas cases cited in the annotation in 1 A.L.R.2d 422-435.

In determining the correctness of the trial court's ruling with respect to the city, this court is required to determine in the first instance the liability of the city, if any, to the plaintiff. In other words, the basic question resolves itself to whether the action can be maintained against the city. In view of conclusions hereafter announced, it is unnecessary to state the grounds of the motion to strike which was sustained by the trial court.

Since the second amended petition alleged the city commenced a proceeding in eminent domain to acquire land for water works improvement, and inasmuch as it was further alleged the proceeding was abandoned by the city by proper resolution within ten days after the commissioners filed their appraisement in the district court of Neosho County, and, assuming, arguendo, that the plaintiff sustained the damages alleged, the question arises, is the city liable?

The answer to the question is conditioned upon the answer to the further query: In what capacity was the city acting? If it acted as an agent of the sovereign upon a subject of general public concern, dissociated from any private, proprietary right, it shares the sovereign's immunity from suit (Edson v. City of Olathe, 81 Kan. 328, 105 P. 521, 36 L.R.A.,N.S 861, writ of error denied, Missouri & K. I. Ry. Co. v. City of Olathe, 222 U.S. 185, 32 S.Ct. 46, 56 L.Ed. 155; Edson v. City of Olathe, 82 Kan. 4, 107 P. 539, 36 L.R.A.,N.S., 865; Missouri & K. I. Ry. Co. v. City of Olathe, 222 U.S. 187, 32 S.Ct. 47, 56 L.Ed. 156).

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