The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a judgment in a mandamus action which stemmed from a zoning controversy.
A bypass designated 1-35 is being constructed north of the city of Emporia, Kansas, extending east and west. There will be three limited access interchanges, one at Burlingame Road for the east side of Emporia; one at Highway 99 for the central business district, and one at Industrial Road for the west side of the town.
The plaintiffs own land at the intersection of Burlingame Road and the bypass. All of the land at this point, which was outside the city limits, was zoned “R-2” residential. The plaintiffs gave Phillips Petroleum Company an option to purchase their tract of land conditioned on a change in zoning so that a service station could be constructed thereon.
On July 7, 1964, plaintiffs’ petition to have the land rezoned was refused by the Metropolitan Area Planning Commission of the city of Emporia and Lyon County. Plaintiffs renewed their request on December 9, 1964, and on February 9, 1965, the commission approved the request as to the east one-half of plaintiffs’ land. On March 5,1965, the Board of County Commissioners of Lyon County reversed the Area Planning Commission’s decision and the land remained zoned for residence only.
On April 1, 1965, plaintiffs filed this action in mandamus alleging the decision of the Board of County Commissioners was unreasonable, arbitrary and capricious. On the trial of the case the adjoining landowners, appellants herein, appeared by their attorneys and offered to enter their appearance or intervene. Appellants’ attorneys were permitted to sit at the counsel table and assist defendants’ attorney. On July 15, 1965, the district court filed its memorandum opinion in which it found the act of the defendant, the Board of County Commissioners, in refusing to change the zoning to “CS” Highway Service District classification, unreasonable and discriminatory, and entered judgment for plaintiffs as to the east one-half of plaintiffs’ land on July 22, 1965.
The attorney for the defendant, the Board of County Commis[25]*25sioners, informed the adjoining landowners, appellants, that the Board would not file a motion for a new trial, neither would it file an appeal if the motion was denied. The adjoining landowners on July 27, 1965, filed a motion to intervene as defendants for the purpose of filing a motion for a new trial and perfecting an appeal if the motion for a new trial was denied. This motion was overruled.
The adjoining landowners have appealed challenging both the denial of the motion to intervene and the judgment on the merits.
At the outset we are confronted with appellees’ motion to dismiss the appeal because the issues in the case have become moot.
Appellees contend that when the district court entered its order no effort was made to obtain a stay of execution and the county commissioners did change the zoning on the land in controversy; that the zoning is now an accomplished fact, and “that a reversal of that order in this court could not and would not in and of itself change the zoning of the subject property because such changes can be made only as prescribed by statute.”
We cannot agree with appellees’ contention. We take the view that if the district court entered an erroneous order which caused the Board to pass a zoning resolution which was contrary to its better judgment, both the court order and the zoning resolution could be and should be set aside if no detrimental change in circumstances has occurred in connection with the land due to appellants’ failure to obtain a stay of the trial court’s order pending appeal.
This court adheres to the rule that it will not consider and decide questions which if decided would not be applicable to any actual controversy and where the judgment itself would be unavailing. However, appeals will not be dismissed as moot unless it clearly and convincingly appears the actual controversy has ceased and the only judgment which could be entered would be ineffectual for any purpose and an idle act insofar as rights involved in the action are concerned. (Moore v. Smith, 160 Kan. 167, 160 P. 2d 675 and cases cited therein.)
As will be demonstrated by the conclusion of this opinion effectual relief can be granted if the judgment should be reversed.
Appellants first complain of the judgment of the trial court refusing them permission to intervene when, following the judgment, the attorney for the Board of County Commissioners announced that he was not going to litigate further.
The appellees contend, and the trial court appears to have [26]*26concluded, that the motion to intervene was untimely, having been made after the judgment, and could not be allowed. We cannot agree with the contention under the facts and circumstances of this case.
At the commencement of the trial the County Attorney announced that he was appearing for the County Commissioners, and also appearing at the counsel table were counsel for Mr. Harold Kendig, the protesting landowner in the case. He also announced that he was associated as local counsel with counsel representing Mr. Kendig. In answer to a question by the court as in what capacity Mr. Kendig was appearing the following colloquy took place:
“Mr. Shapiro: Your Honor, we just understood that as a protesting landowner, Mr. Kendig, has a right to be heard in this matter. If the court wishes, we will enter an appearance or perhaps under your rules, we might be able to ask for leave to intervene in this matter.
“The Court: The Court would not permit intervention sought in this manner. If you care to remain at counsel table to assist Mr. Demo, you may do so.
“Mr. Shapiro: Thank you, your Honor.
“The Court: The landowner will not be permitted to introduce evidence in this case since he is not a party to the action.
“Mr. Putnam: If it please the court, your Honor, the plaintiff also desires to point out that if the County Attorney is appearing on behalf of the County of Lyon and also on behalf of Mr. Kendig as stated for the record, that it is our position that there is a direct conflict of interest.
“The Court: Well, the Court recognizes the uniqueness of the situation, but will permit him to go forward.”
It is clear that the court and all of the parties knew the interest which the appellants had in the case and that their interest was similar to and being represented by the defendant, the Roard of County Commissioners.
The appellants contend that the adjoining landowners had the right to intervene when the Roard refused to appeal from the judgment requiring a change in zoning which affected the value of the landowner’s property. K. S. A. 60-224 (a), insofar as material here, provides as follows:
“Upon timely application anyone shall be permitted to intervene in an action: . . . or (2) when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action; . . .”
There are three requirements for intervention under the above rule, i. e., timely application, inadequate representation by the existing parties and a judgment which is or may be binding.
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a judgment in a mandamus action which stemmed from a zoning controversy.
A bypass designated 1-35 is being constructed north of the city of Emporia, Kansas, extending east and west. There will be three limited access interchanges, one at Burlingame Road for the east side of Emporia; one at Highway 99 for the central business district, and one at Industrial Road for the west side of the town.
The plaintiffs own land at the intersection of Burlingame Road and the bypass. All of the land at this point, which was outside the city limits, was zoned “R-2” residential. The plaintiffs gave Phillips Petroleum Company an option to purchase their tract of land conditioned on a change in zoning so that a service station could be constructed thereon.
On July 7, 1964, plaintiffs’ petition to have the land rezoned was refused by the Metropolitan Area Planning Commission of the city of Emporia and Lyon County. Plaintiffs renewed their request on December 9, 1964, and on February 9, 1965, the commission approved the request as to the east one-half of plaintiffs’ land. On March 5,1965, the Board of County Commissioners of Lyon County reversed the Area Planning Commission’s decision and the land remained zoned for residence only.
On April 1, 1965, plaintiffs filed this action in mandamus alleging the decision of the Board of County Commissioners was unreasonable, arbitrary and capricious. On the trial of the case the adjoining landowners, appellants herein, appeared by their attorneys and offered to enter their appearance or intervene. Appellants’ attorneys were permitted to sit at the counsel table and assist defendants’ attorney. On July 15, 1965, the district court filed its memorandum opinion in which it found the act of the defendant, the Board of County Commissioners, in refusing to change the zoning to “CS” Highway Service District classification, unreasonable and discriminatory, and entered judgment for plaintiffs as to the east one-half of plaintiffs’ land on July 22, 1965.
The attorney for the defendant, the Board of County Commis[25]*25sioners, informed the adjoining landowners, appellants, that the Board would not file a motion for a new trial, neither would it file an appeal if the motion was denied. The adjoining landowners on July 27, 1965, filed a motion to intervene as defendants for the purpose of filing a motion for a new trial and perfecting an appeal if the motion for a new trial was denied. This motion was overruled.
The adjoining landowners have appealed challenging both the denial of the motion to intervene and the judgment on the merits.
At the outset we are confronted with appellees’ motion to dismiss the appeal because the issues in the case have become moot.
Appellees contend that when the district court entered its order no effort was made to obtain a stay of execution and the county commissioners did change the zoning on the land in controversy; that the zoning is now an accomplished fact, and “that a reversal of that order in this court could not and would not in and of itself change the zoning of the subject property because such changes can be made only as prescribed by statute.”
We cannot agree with appellees’ contention. We take the view that if the district court entered an erroneous order which caused the Board to pass a zoning resolution which was contrary to its better judgment, both the court order and the zoning resolution could be and should be set aside if no detrimental change in circumstances has occurred in connection with the land due to appellants’ failure to obtain a stay of the trial court’s order pending appeal.
This court adheres to the rule that it will not consider and decide questions which if decided would not be applicable to any actual controversy and where the judgment itself would be unavailing. However, appeals will not be dismissed as moot unless it clearly and convincingly appears the actual controversy has ceased and the only judgment which could be entered would be ineffectual for any purpose and an idle act insofar as rights involved in the action are concerned. (Moore v. Smith, 160 Kan. 167, 160 P. 2d 675 and cases cited therein.)
As will be demonstrated by the conclusion of this opinion effectual relief can be granted if the judgment should be reversed.
Appellants first complain of the judgment of the trial court refusing them permission to intervene when, following the judgment, the attorney for the Board of County Commissioners announced that he was not going to litigate further.
The appellees contend, and the trial court appears to have [26]*26concluded, that the motion to intervene was untimely, having been made after the judgment, and could not be allowed. We cannot agree with the contention under the facts and circumstances of this case.
At the commencement of the trial the County Attorney announced that he was appearing for the County Commissioners, and also appearing at the counsel table were counsel for Mr. Harold Kendig, the protesting landowner in the case. He also announced that he was associated as local counsel with counsel representing Mr. Kendig. In answer to a question by the court as in what capacity Mr. Kendig was appearing the following colloquy took place:
“Mr. Shapiro: Your Honor, we just understood that as a protesting landowner, Mr. Kendig, has a right to be heard in this matter. If the court wishes, we will enter an appearance or perhaps under your rules, we might be able to ask for leave to intervene in this matter.
“The Court: The Court would not permit intervention sought in this manner. If you care to remain at counsel table to assist Mr. Demo, you may do so.
“Mr. Shapiro: Thank you, your Honor.
“The Court: The landowner will not be permitted to introduce evidence in this case since he is not a party to the action.
“Mr. Putnam: If it please the court, your Honor, the plaintiff also desires to point out that if the County Attorney is appearing on behalf of the County of Lyon and also on behalf of Mr. Kendig as stated for the record, that it is our position that there is a direct conflict of interest.
“The Court: Well, the Court recognizes the uniqueness of the situation, but will permit him to go forward.”
It is clear that the court and all of the parties knew the interest which the appellants had in the case and that their interest was similar to and being represented by the defendant, the Roard of County Commissioners.
The appellants contend that the adjoining landowners had the right to intervene when the Roard refused to appeal from the judgment requiring a change in zoning which affected the value of the landowner’s property. K. S. A. 60-224 (a), insofar as material here, provides as follows:
“Upon timely application anyone shall be permitted to intervene in an action: . . . or (2) when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action; . . .”
There are three requirements for intervention under the above rule, i. e., timely application, inadequate representation by the existing parties and a judgment which is or may be binding.
Until such time as the county attorney announced that he was [27]*27not going to file a motion for a new trial and appeal the case if a new trial was denied, the adjoining landowners had been adequately represented by the Board of County Commissioners. On being informed of the defendant’s intentions, the adjoining landowners filed their motion to intervene and attached thereto was a motion for a new trial all filed within ten days after the judgment. The requirement for “timely application” to intervene has no application under K. S. A. 60-224 (a) (2) until such time as adequate representation ceases.
We are forced to conclude that there was “timely application” as that term is used in the intervention statute.
The Board of County Commissioner’s failure to take an appeal clearly demonstrates inadequate representation of the adjoining landowners. We do not wish to be understood as holding that to constitute adequate representation an appeal is necessary in every case. However, here we have an administrative body charged by the trial court with unreasonable and discriminatory conduct in the face of a strong presumption that the members properly performed their duties. The necessity of an appeal to protect the rights of the adjoining landowners will be more clearly demonstrated as we consider the record on the merits. Where the application is timely made intervention should be allowed after a final decree where it is necessary to determine some right which cannot otherwise be protected.
Although this court has not had occasion heretofore to pass on this specific question, the rule announced appears to be very generally applied. The United States Court of Appeals for the District of Columbia had before it the same factual situation involving a zoning dispute and stated in Wolpe v. Poretsky, 79 App. D. C. 141, 144 S. 2d 505, 508, cert. den. 323 U. S. 777, 89 L. Ed. 621, 65 S. Ct. 190:
“The application, to intervene was timely. Intervention may be allowed after a final decree where it is necessary to preserve some right which cannot otherwise be protected. Here at least one of the rights which cannot be protected without intervention is the right of appeal. The court was, therefore, in error in denying appellants leave to intervene as a matter of right." (p. 144.)
Cases from other jurisdictions to the same effect are Wags Transportation System v. City of Miami Beach, Fla., 88 So. 2d 751; Bredberg v. City of Wheaton, 24 Ill. 2d 612, 182 N. E. 2d 742, 747-748; Esso Stand. Oil Co. v. Taylor, 399 Pa. 324, 159 A. 2d 692, 696; Colony Park, Inc. v. Malone, 205 N. Y. S. 2d 166, 168; Roosevelt v. Beau Monde Co., 152 Colo. 567, 384 P. 2d 96, 101-103.
Considering whether the appellants will be bound by the judg[28]*28ment in the action, it seems clear that a judgment which affects a zoning order would bind adjoining property owners to the extent of taking away their right to an independent action based on the order. Otherwise, adjoining property owners could relitigate the issues in the case any time the plaintiff began construction, on the theory that their right to bring an independent action was not concluded by the decree. The practical result of such an interpretation would be to compel anyone bringing a suit like the present one to join all property owners who may conceivably be damaged. We believe that the Board of County Commissioners, in the absence of intervention by adjoining property owners, sufficiently represent their interest so that a decree setting aside a zoning order may bind them under the facts and circumstances of this case. (Sabin v. Sherman, 28 Kan. 289; McDonald v. Joint Rural High School District No. 9, 180 Kan. 563, 306 P. 2d 175.)
Approaching the consideration of the controversy on the merits we note appellees’ suggestion that:
". . . Should this Court decide that the appellants should have been permitted to intervene in the District Court, then it would seem in accordance with our established procedure in this state that the matter should be returned to the trial court for hearing on the proffered new trial motion before review is sought here.”
We conclude that the matter is properly before us for consideration on the merits. The record before the trial court was complete at the time the motion to intervene was denied. That record is now before us for review. The fact that a motion for a new trial has not been submitted to the trial court and considered by it is no bar to a review under the rules of this court applicable to the provisions of the new Code of Civil Procedure. Supreme Court Rule No. 6 (d), covering the statement of points on which the appellants intend to rely and which will be briefed, reads in part:
“. . . An issue may be raised in the statement of points regardless of whether a motion for a new trial was filed . . .” (See, also, Schoof v. Byrd, 197 Kan. 38, 415 P. 2d 384.)
The appellants contend that the only issue before the trial court and the only issue before this court is whether the refusal of the Board of County Commissioners to amend the zoning regulation as requested was arbitrary, capricious, discriminatory or unreasonable. The appellants further contend that there was ample evidence to support the Board’s refusal and therefore the trial court [29]*29erroneously substituted its judgment for that of the administrative body.
We are constrained to agree with appellants’ contentions. However, before we proceed with a consideration of the facts it will be well to have before us the rules of law which will govern the extent of judicial consideration of the factual questions.
The courts must be ever mindful of their limitations in reviewing discretionary orders of administrative bodies. It must be understood that the Board of County Commissioners had the right to prescribe zoning, the right to change zoning and the right to refuse to change zoning. The power of the courts is limited to determining the reasonableness of the action taken by the Board. The court should not substitute its judgment for that of the Board and should not declare its action unreasonable unless clearly compelled to do so by the evidence. (Rich v. City of Wichita, 189 Kan. 323, 369 P. 2d 378.) There is a presumption that the Board acted fairly, reasonably and its act was not discriminatory. It is incumbent upon those attacking the action to show wherein the Board’s action was unreasonable. (Konitz v. Board of County Commissioners, 180 Kan. 230, 236, 303 P. 2d 180.)
The appellants rely heavily on Barclay v. Mitchum, 186 Kan. 463, 350 P. 2d 1109 in support of> the trial court’s judgment. The case is hardly a precedent for the determination of the case now before us on the merits. The Barclay case was tried under the old Code of Civil Procedure and because of the failure to file a motion for a new trial this court was bound by the trial court’s findings. The evidence was not properly before us for review. The case is largely a precedent for a procedural question under the old code.
With these limitations in mind we will consider facts which the Board had before it when it refused to rezone the land in controversy.
The Board of County Commissioners had before it the report of a firm of consulting engineers which had been hired by the City of Emporia to work out long range zoning plans and recommendations, and the firm had made the following suggestions as to the requested zoning. The tract is surrounded entirely by property zoned for residential purposes; rezoning would affect adjacent land value for residential purpose even if it were landscaped; the request would not promote orderly development and would materially affect the values of adjacent land; the proposed change would not promote the general welfare of the neighborhood or community [30]*30as the entire area is zoned for residential purposes; the requested change would not lessen traffic congestion; the proposed service station would burn lights all night which would be detrimental to existing and projected residential land use in the area; the requested change would have an adverse effect on surrounding property values; the requested change would not promote the orderly development of the neighborhood which had been planned on a long-range basis as residential; the highest and best use for appellees’ tract and the surrounding areas is for residential purposes; there were adequate areas at the other interchanges for proposed service stations, and the Highway 99 interchange was preferred for a service station site.
There was a letter from the president of Kansas State Teachers’ College stating that the northeast section of Emporia and the adjacent county area was zoned for residential purposes; it had been projected to remain residential in long range plans for the area, and it was preferred for residential in that it was relatively high ground and thus safe from occasional flooding.
There was also a pamphlet of the American Association of State Highway Officers sent to the Board by a letter of the State Highway Department which called attention to the problems of congestion created by having service station and highway service facilities immediately adjacent to entrances and exits to and from interstate highways.
The above facts are not directly refuted. The trial court made no findings contrary to the facts which were before the Board but found that:
“In 1964, the Emporia Country Club sold 2.7 acres of land located in the southeast quadrant of tire interchange complex at Highway 99 to Ralph J. Hahn contingent upon a change in the zoning classification of the tract.
“Mr. Hahn filed an application with the Emporia-Lyon County Metropolitan Area Planning Commission to change the zoning classification of the above mentioned tract. After a public hearing, the Zoning Commission recommended that the change be made. On November 18, 1964, the Board of County Commissioners of Lyon County changed the Zoning classification of this tract from R-2 Multi-Family Residential to C-S Highway Service District.
“It is not possible to reconcile the action of the Board of County Commissioners in changing the zoning classification of the Hahn Tract on November 11, 1964, and its denial of the requested change in the zoning classification of plaintiffs’ property on March 5, 1965.”
It would appear that the trial court failed to recognize the distinguishing features between the Hahn tract and the tract in contro[31]*31versy. These were well stated by the chairman of the Board of County Commissioners as well as other witnesses testifying for appellants.
The Hahn tract is over a mile distant from appellees’ tract; there are no homes or residences within six-tenths of a mile from the Hahn tract; appellees’ tract is surrounded entirely by residences; rezoning of the Hahn tract has no adverse effect on surrounding land values in that it is adjoined by a national guard armory on the south, a golf course on the west and college property on the east; rezoning of appellees’ tract would severely and adversely affect surrounding land values or land use; lights burning all night on appellees’ tract would adversely affect the current and projected use of the surrounding residential area; traffic leaving or entering the Interstate Highway to and from the city would pass the Hahn tract but would not pass appellees’ tract, and the Hahn tract is on a state highway while appellees’ tract is on a county road.
We fail to find anything in the record which indicates that the Board’s refusal to change the zoning classification was unreasonable, arbitrary or discriminatory.
The judgment of the trial court should be reversed with instructions to declare void the Board of County Commissioners’ resolution rezoning the land in controversy at the trial court’s direction, and the Board should be left free to rezone or refuse to rezone the land in controversy as changed conditions have in its discretionary opinion made desirable.
It is so ordered.
APPROVED BY THE COURT.