Moore v. Kansas Turnpike Authority

317 P.2d 384, 181 Kan. 840, 1957 Kan. LEXIS 418

Opinions

The opinion of the court was delivered by

Hall, J.:

This matter is before the court on rehearing. It was previously considered and is reported in 181 Kan. 51, 310 P. 2d 199.

Since this is a rehearing, it would serve no uséful purpose to recite the extensive facts of the case. They are reported in the previous decision and reference is made thereto.

Suffice it is that this case is a condemnation appeal involving a single 160 acre parcel of land. After appropriate appeals to the district court from the award of the appraisers a motion was filed by the Kansas Turnpike Authority to consolidate the various appeals for trial. The Turnpike moved to consolidate the cases as a matter of law under G. S. 1955 Supp., 26-102, and not as a matter of discretion of the court under G. S. 1949, 60-601 and G. S. 1949, 60-765.

The court overruled the motion and refused to consolidate the appeals for trial. In due course an appeal was taken in this court. The appellant Kansas Turnpike Authority specified as error the following question which was considered in the previous hearing of lie case, to wit:

“The sole question involved is ‘Does an appeal in the District Court from an appraisement in an eminent domain proceeding bring to the District Court in its entirety the question of the sufficiency of the award to be tried in a single action as to all of the parties?’ ”

After an exhaustive study of the authorities which were cited in the previous decision the court was of the opinion that the matter of consolidation of such cases for trial was governed by the legislative intent of G. S. 1955 Supp., 26-102. The statute provides as follows:

“If the petitioner or the owner or- any lien holder of record of any lot or parcel of ground so condemned shall be dissatisfied with the appraisement thereof, he shall, within thirty days, file a written notice of appeal with the clerk of said court and give bond for the costs thereof, to be approved by said clerk, and thereupon an action shall be docketed and tried the same as other actions: .' . .” (Emphasis ours.)

The court said at page 57 of the previous opinion:

“The use of the disjunctive in the foregoing statute indicates the legislative intent that each owner of an interest in property may have a separate trial for the value of his property.”

The court further said at page 59:

“We cannot accept appellant’s contention. In this jurisdiction tire rule followed in consolidation of cases for trial is not one of substance but one of procedure (under the provisions of G. S. 1949, 60-601 and 60-765). . . .

“Motions for consolidation under the statutes are in the sound' discretion of the trial court. (Railway Co. v. Hart, 7 Kan. App. 550, 51 Pac. 933; Rice & Floyd, v. Hodge Bros., 26 Kan. 164; and Todd v. Central Petroleum Co., 153 Kan. 550, 112 P. 2d 80.)

“In the absence of any showing of abuse of discretion in refusing to consolidate these appeals for trial, the judgment of the district court will be affirmed. No abuse of discretion is shown here.”

In its previous opinion the court émphasized the disjunctive aspects of G. S. 1955 Supp., 26-102, and decided that it was the intent of the legislature to give the petitioner or the owner or any lien holder or any interested party the right to separate trial for the value of his interest in the land taken'.'

In arriving at this conclusion the court was not unmindful of Federal Land Bank v. State Highway Comm., 150 Kan. 187, 92 P. 2d 72. The maj'ority opinion cited and quoted from the case but distinguished it along with a persuasive line of authority' on the basis of the disjunctive aspects of the statute.

After rehearing and further study the court is now of the opinion that its previous decision ought to be vacated and set aside for the following reasons:

Following our previous decision (Moore v. Kansas Turnpike Authority, 181 Kan. 51, 310 P. 2d 199, and other citations therein) eminent domain begins as a special statutory proceeding in rem under the Kansas statutes. See, also, State v. Boicourt Hunting Ass’n, 177 Kan. 637, 282 P. 2d 395; and Walker v. City of Hutchinson, 178 Kan. 263, 284 P. 2d 1073, 352 U. S. 112, 1 L. ed. 2d 178, 77 S. Ct. 200.

As a matter of substantive law under the provisions of G. S. 1949, 26-101, et seq., as amended by G. S. 1955 Supp., 26-102, an appeal in an eminent domain proceeding from the award of the appraisers to the district court brings to that court a single action to be tried as such, without separating such action into as many separate actions as there are parties interested in the particular fa-act involved in the appeal, following Federal Land Bank v. State Highway Comm., supra.

The salient facts of that case were that the State Highway Commission filed its petition to condemn certain lands for highway purposes. Notice was given the landowner as well as the bank, a lien holder, which held a mortgage on the tract involved.

The bank then filed an application alleging it held unsatisfied mortgage liens on the land and asked that an order be made to pay the award to the bank.

In due course, the appraisers made their report and the bank appealed from the award. Neither the landowner nor the State Highway Commission filed any notice of appeal from the appraisement made.

The State Highway Commission then filed its motion for an order determining the questions of law propounded. The first question was whether the landowners were parties to the appeal; the second, if they were not parties, what was the measure of damages to which the bank was entitled.

The question as to the division of the award as between the landowner and the lien holder was not before the court.

The court, after reviewing the history of the condemnation statute, said:

“. . . In 1937 the provision of the general condemnation act conferring right of appeal theretofore granted to the petitioner or landowner was amended by Laws 1937, ch. 226, §1, now appearing as G. S. 1937 Supp. 26-102, and now reads:

“ ‘If the petitioner or the owner or any lienholder of record of any lot or parcel of ground so condemned shall be dissatisfied with the appraisement thereof, he shall, within thirty days, file a written notice of appeal with the clerk of said court and give bond for the costs thereof, to be approved by said clerk, and thereupon an action shall be docketed and tried the same as other actions.’

“It will be observed that under that statute appeal is perfected, not by serving notice on any parties occupying what might be called an adverse position; it is perfected by notice filed with the clerk of the court. There is nothing in that statute which indicates or leads to the conclusion that as to a particular tract of ground the petitioner might appeal as to the lienholder and not the landowner, or vice versa, or that the lienholder could appeal separately as between the petitioner and the landowner, or that the landowner could appeal separately as between the petitioner and the lienholder. The statement is that if any one of the three appeal, an action shall be docketed and tried. The statute provides its own procedure up to the point where the appeal is perfected. When that has been accomplished ‘an action shall be docketed and tried the same as other actions.’ We are of opinion that under the statute there is and can be no separation as between parties. Whenever an appeal is taken, either by the petitioner or by the landowner or by a lienholder, the effect is to bring to the district court in its entirety the question of the sufficiency of the award, and the trial of that issue in the district court is conclusive on all of the parties, subject only to their right of appeal to this court. We think the ruling of the trial court on the first question of law propounded that the landowner was not a party to the appeal to the district court was erroneous, . . .” (pp. 189, 190.)

■ On tbe question as to the measure of damages, the court said:

“The appellant here has briefed the question as to the measure of damages to be applied as to a lienholder on the theory that he is owner of less than a fee and the measure should be restricted to his interest or right. We shall not discuss that question as presented. . . .”

After rehearing the court is in agreement with the Federal Land Bank case and is of the opinion that the disjunctive aspects of G. S. 1955 Supp., 26-102 are controlled by the following words of the statute, to wit:

. . and thereupon an action shall he docketed and tried the same as other actions: . . .” (Emphasis ours.)

The Federal Land Bank case was decided in 1939. The legislature has not seen fit to change the statute in this respect and since it has-been amended in many other ways we must assume that the decision of the Federal Land Bank case follows the legislative intent of the statute. Therefore, it is the law of this state that whenever an appeal is taken to the district court under this statute, either by the petitioner or the landowner or by a lien holder, from an appraisement made, the effect is to bring to the district court in its entirety the question of the sufficiency of the award, and the trial of that issue in the district court is conclusive on all of the parties, subject only to the right of appeal to the supreme court.

In the original opinion of this court (Moore v. Kansas Turnpike Authority, 181 Kan. 51, 310 P. 2d 199) we pointed out that the authorities are sharply divided on the issue presented in this case. Generally speaking, state statutes and practices are controlling. As in the Federal Land Bank case, the various jurisdictions follow those authorities which most closely conform to the local statute and practice.

A leading case is Kohl Et Al. v. United States, 91 U. S. 367, 23 L. ed. 449:

“The second assignment of error is, that the Circuit Court refused the demand of the defendants below, now plaintiffs in error, for a separate trial of the value of their estate in the property. They were lessees of one of the parcels sought to be taken, an dthey demanded a separate trial of the value of their interest; but the court overruled their demand, and required that the jury should appraise the value of the lot or parcel, and that the lessees should in the same trial try the value of their leasehold estate therein. In directing the course of the trial, the court required the lessor and the lessees each separately to state the nature of their estates to he jury, the lessor to offer his testimony separately, and the lessees theirs, and then the government to answer the testimony of the lessor and the lessees; and the court instructed the jury to find and return separately the value of the estates of the lessor and the lessees. It is of this that the lessees complain. They contend, that whether the proceeding is to be treated as founded on the national right of eminent domain, or on that of the State, its consent having been given by the enactment of the State legislature of Feb. 15, 1873 (70 Ohio Laws, 36, sect. 1), it was required to conform to the practice and proceedings in the courts of the State in like cases. This requirement, it is said, was made by the act of Congress of June 1, 1872. 17 Stat. 522. But, admitting that the court was bound to conform to the practice and proceedings in the State courts in like cases, we do not perceive that any error was committed. Under the laws of Ohio, it was regular to institute a joint proceeding against all the owners of lots proposed to be taken. (Giesy v. C. W. & T. R. R. Co., 4 Ohio St. 308); but the eighth section of the State statute gave ‘the owner or owners of each separate parcel’ the right to a separate trial. In such a case, therefore, a separate trial is the mode of proceeding in the State courts. The statute treats all the owners of a parcel as one party, and gives to them collectively a trial separate from tire trial of the issues between the government and the owners of other parcels. It hath this extent; no more. The court is not required to allow a separate trial to each owner of an estate or interest in each parcel, and no consideration of justice to those owners would be subserved by it. . . .” (p. 377.)

See, also, Bogart v. United States, 169 F. 2d 210; Carlock v. United States, 53 F. 2d 926; City of St. Louis v. Rossi, 333 Mo. 1092, 64 S. W. 2d 600; Dye v. Railroad Co., 77 Kan. 488, 94 Pac. 785; Federal Land Bank v. State Highway Comm,., supra; K. & C. P. Rly. Co. v. Phipps, 4 Kan. App. 252, 45 Pac. 926; Meadows v. United States, 144 F. 2d 751; Newton Trust Co. v. Commissioner of Internal Revenue, 160 F. 2d 175; Reiter v. State Highway Commission, 177 Kan. 683, 281 P. 2d 1080; State ex rel. McCaskill v. Hall, 325 Mo. 165, 28 S. W. 2d 80, 69 A. L. R. 1256; 166 A. L. R. 1211; State Highway Commission v. Weiss, 167 Kan. 427, 207 P. 2d 480; 18 Am. Jur., Eminent Domain, § 316; Sinclair v. Missouri Pac. Rld. Co., 136 Kan. 764, 766, 18 P. 2d 195; Nelson v. City of Osawatomie, 148 Kan. 118, 121, 79 P. 2d 857; C. K. & W. Rld. Co. v. Sheldon, 53 Kan. 169, 35 Pac. 1105; United States v. 25,936 Acres of Land, Etc., 153 F. (2d) 277; Grand River Dam Authority v. Gray, 192 Okla. 547, 138 P. 2d 100; Eagle Lake Improvement Co. v. United States, 160 F. (2d) 182; Nichols Em. Dom. V. 6 § 24.1 [1], p. 4; 69 A. L. R. 1263; and 98 A. L. R. 260.

See, also, Restatement Of The Law, Property, § 53:

“. . . The condemning party is generally privileged to join in a single proceeding all persons having estates or interests in the affected land. Cor-relatively, it is the general rule that all persons having interests in land which has been appropriated, or is about to be appropriated, are privileged to unite in a single proceeding to obtain compensation for the land taken. An occasional statute explicitly makes these privileges, also duties. Thus the procedure, in the absence of a specifically inconsistent statute, is to fix a lump sum value for the estate in fee simple absolute and then to take up the distribution of this sum among the persons having interests in the affected land.” (pp. 186, 187.)

On the constitutional aspects, see particularly State ex rel. McCaskill v. Hall, 325 Mo. 165, 28 S. W. 2d 80, 69 A. L. R. 1256:

“Refusal to assess damages of the owner of a specific interest in property taken by eminent domain separately from those of other owners of interests in the property does not violate constitutional provisions against deprivation of property without due process of law or taking private property for public use ■yvitbout just compensation, to be paid before the property is disturbed or the proprietary rights of the owner therein devested, although the owner of the specific interest may be compelled to bear the expense of litigation, with other interested persons, as to the apportionment of the award among themselves, and such litigation may continue until long after he has been dispossessed of the property.”

The separate interest of the owner of a leasehold estate and the right to share in compensation when all or part of the property leased is taken by eminent domain is well settled and not disturbed by the decision here. (Bales v. Railroad Co., 92 Kan. 771, 141 Pac. 1009; State Highway Comm. v. Weiss, supra; State Highway Commission v. Safeway Stores, 170 Kan. 413, 226 P. 2d 850; and Miles v. City of Wichita, 175 Kan. 723, 267 P. 2d 943.) But, the right to share in the award does not entitle such owner of a leasehold interest to a separate trial to determine compensation and damages for the separate interest appropriated.

For contrary holdings see Boston Chamber of Commerce v. Boston, 217 U. S. 189, 54 L. ed. 725, 30 S. Ct. 459; United States v. Certain Parcels of Land, 43 F. Supp. 687; Duckett & Co. v. United States, 266 U. S. 149, 69 L. ed. 216, 45 S. Ct. 38; 69 A. L. R. 1263; 29 C. J. S. Eminent Domain § 279; and State v. Platte Valley Public Power and Irrigation District, 147 Neb. 289, 23 N. W. 2d 300, 166 A. L. R. 1196.

The force of this decision means that the district courts of Kansas must not docket separately appeals from the award of appraisers by owners of separate estates or interests in a single parcel of land. Such appeals cannot be lawfully so severed and later consolidated for trial. To the contrary, an appeal of any owner or interest holder brings to the court in its entirety the sole question of the sufficiency of the award to be docketed and tried as a single action.

It is recognized that many of the district courts have been treating such appeals as a procedural matter; thus each appeal has been docketed separately with consolidation for later trial a matter of discretion by the court. Such is the case here. Under these facts and circumstances the right of consolidation of such appeals under G. S. 1955 Supp. 26-102 must be considered as a matter of substantive right and not one of procedure. Where such appeals are docketed separately a refusal to consolidate for trial is contrary to law.

It is important to emphasize that the rule of this case applies to eminent domain proceedings and to appeals in such proceedings by the petitioner or owners of an estate or interest in a single parcel of land. The decision of this case has no application to, and in no wáy changes, the established rule that appeals from awards of appraisers by owners of an estate or interest in separate parcels of land may be docketed separately and may be consolidated for trial as shall be determined in the sound discretion of the court, under the authority of G. S. 1949, 60-601 and 60-765.

The rehearing of this matter is limited to the issue of the consolidation of appeals in this case. The court did not grant a rehearing on .the cross appeal of appellee in re the limiting of the appellee on certain cross-examination. As to that point the previous decision of this court in 181 Kan. 51 stands. All other portions of that decision are withdrawn and set aside.

The judgment of the district court of Osage County is reversed in part and the case remanded with directions to consolidate the separately docketed appeals and proceed with a new trial of all appeals as a single action to determine the sufficiency of the award.