*1 No. Gas and Cross-Appellee,
A. Kansas W. Appellant Cline, Cross-Appel- Appellee Corporation, Company, Electric lant. 1000) (318 P. 2d
Opin- 7, 1957. ion filed December cause, Lamb, Coffey- argued Lamb, Coffeyville, A. and Paul A. R. cross-appellee.
ville, appellant and was with him on the briefs for the Scovel, argued Scovel, Independence, cause, Jay and Thomas R. W. Stanley Garrity, Wichita, Independence, with him on the briefs cross-appellant. appellee and delivered by the court was The proceeding of a condemnation arises out This appeal Price, J.: sought a corporation, Company, Gas and Electric the Kansas wherein A. W. Cline land owned across way to appropriate high line. an electric constructing for the purpose company as the convenience, the condemner refer to we will For owner. and to the condemnee a total the owner awarded in condemnation commissioners court, his notice of the district $8,935 damages. appealed that he forth setting
appeal aggrieved to and does and intends . is dissatisfied with “. . appointed by by appraisers made hereby appeal from the award matter, County, Montgomery above-entitled Court District County, . . District Court of said to the court, trial in Following the district the jury awarded damages $8,500. a total amount of entering judgment amount *2 the court allowed the owner interest from the date of on a taking portion of the judgment and assessed the costs equally between the parties. errors,
The owner has numerous appealed, specifying the company has filed a cross-appeal, specifying error in the allowance of interest on a portion judgment and in dividing the costs.
At this it should point be stated that throughout the condemna- itself, tion proceeding and on to the district appeal court from the award of the owner appraisers, vigorously asserted and contended that did domain; not of eminent company possess that action; for did not petition condemnation state a cause of condemnation; failed to petition public necessity show that the to be property sought condemned was not being condemned he, owner, use and and that public purpose, for was being of his without due of deprived process law violation of Federal constitution. of trial position throughout proceeding, and from the appeal appraisers, award was that the only matter in issue was the question damages to be awarded to the owner— is, how much was he to allowed for property actually taken and for to that remaining.
In thus
the issues the trial
limiting
entirely
court was
correct.
Ass’n,
In
637,
State v. Boicourt
395,
177 Kan.
282
Hunting
P. 2d
not,
it was held that a
may
landowner
in a condemnation proceed
ing, litigate the validity of the
condemnation
proposed
and the right
to appropriate property. Later cases dealing
general
with the
subject
are Board
Gum,
Education
v.
City Nickerson
178 Kan.
397, 398,
780;
State,
285 P. 2d
Ottawa
Ass’n v.
Hunting
460, 461,
denied,
289
P. 2d
352 U. S.
L.
(cert.
ed. 2d
Colvin,
77 Ct.
Bumm
630, 636,
S.
Kan.
31);
but those questions and, stated, ruling the trial court was correct in that on ceeding, from the award of issue before it was appeal only appraisers damages. question follows, therefore, of error specifications the owner’s touch- validity of the condemnation ing questions proceeding sustained, merit without and cannot be are concerned with we those trial matter only relating errors the one issue— alleged the amount of damages. volts, and the carries line in
The electric high question *3 and interference radio television for alleged owner claimed damage this element of in his home. to establish attempting In a Coffeyville, a resident of who Young, the of Mr. testimony offered Electric Company. the Ozark in electrical work for employed major in elec- degree, with held a bachelor of science This witness and had been en- College, from Kansas State engineering, trical He was not many years. off for in electrical work and on gaged television, but had electrical had not worked engineer, licensed ten The company about years. in radio work for engaged repair as an relative expert of this witness testimony objected of electric from resulting proximity interference radio and television connection be in that testimony that all of his lines and moved ex- it. disregard The court admonished jury stricken himself as that the had not qualified witness pressed opinion sustained the business and of the electrical expert phase objection. this wit- was erroneous. The ruling believe the
We abstract, no pur- but useful thirteen pages ness some covers it, it. We studied by detailing served would be pose to consider permitted been should have jury opinion touching on the the case the other evidence in connection with subject. to admit evidence refusing the court erred it is
Next contended com- admitting evidence offered by the owner offered of the owner. objection over pany connection,
In this it is court erred in permitting contended the three witnesses for the how much company testify, objection, damage the had placed owner sustained reason of the limitations his upon use his the condemnation of the property because of fifty-foot right way.
We believe the court erred permitting form and manner in which it was elicited. The true measure of damage in a case such as of the property actually value taken, together with the diminution in of that remaining, tois be based upon best and advantageous most use to which the property may put (Mai Garden Kan. City City, 177 277 P. 2d and we fail 636), competency materiality see the of tire theory of limitation of use.
Complaint also is maie that the unduly erroneously restricted the owner’s cross-examination of certain witnesses on be- half of the company. statement, his the owner told the that an 81-acre opening
tract his had been sold immediately recently south of $111,000 for the it for in a purpose developing high-type homes witnesses, highly restricted district. company’s One real- dealer, estate his gave damage to the amount condemnation, owner had sustained reason of the and on cross- examination was concerning 81-acre tract re- the sale ferred Objection to. was made and sustained. Another witness who, direct-examination, on company, had been permitted to testify as to how much had owner sustained because limitations his use of the con- property by demnation, was asked cross-examination if he had an opinion *4 as to the value of the owner’s affirma- property. replied the tive, but, objection by on the company, permitted not to state his opinion. We think that both of these rulings were erroneous. While, rule, as a it general is true that the issue of owner should land condemned not may receive for be some established sale in the specific exceptional yet, in order to neighborhood, the test of witnesses and value and knowledge weight the of opin- values, given by ions them as to they may asked on cross-exam- ination other concerning transactions and as to sales of other prop- Weidenmann, erty. (Railway Co. 77 Kan. 94 Pac. 146.) general For discussion of the rule to relating the and extent scope this, of cross-examination matters such as see also Bourgeois v. mentioned heretofore rulings the erroneous In our opinion were be said the owner’s may such that it gravity of that he believe and we therefore thereby, affected prejudicially a new trial. entitled to of the com- that discussion it follows disposition,
In view of this
interest on a
to the allowance
respect
pany’s cross-appeal
the trial court
of costs in
and the division
portion
judgment
unnecessary.
naturally
becomes
Costs
will
parties
between the
rendered, and with
may be
ultimately
whatever judgment
follow
covered in the
subject
interest
is fully
to
matter of
respect
Education
Common School Dis-
Burke v. Board
recent case
trict No.
I with the disagree, error. The constitute reversible evidence sibility rejection admitted, been well have might Young witness but, evidence, did rejection other cumulative of merely being limitations concerning As to prejudice. not result in of the con- because use his owner’s demnation, called for an merely the question occurrs to me of the re- diminution matter of opinion touching values, I am also evidence as to maining land. view of other unable of cross-examination of some agree that the restriction relating All matters witnesses was company’s prejudicial. the trial. On two aired in question fully In the property. occasions the was taken out to view entire received record it me that the owner light appears trial, a fair extent I dissent. respectfully dissent. foregoing J., Hall, concur J., C. Parker, conceded under It must be specially: concurring J., Schroeder, not, in a may landowner that a Kansas law state of present proposed litigate validity proceeding, condemnation that in appropriate property, condemnation and *5 separate independent must bring questions order to raise the law, how the landowner state of action. under Query, actually power had no condemning authority fare would where fact, that under Kansas law eminent domain in view of the land an when under subject specific performance placed action for contract. to me attention. Under suggests legislative This need Dick v. District No. Drainage P. 2d if the action moot installations injunction complete becomes the time Court at Supreme appeal. hears
Concerning admissibility of the trial court on the evidence, and rejection of it fair in disclose only my opinion took trial since below this case further actually place suggests need of legislative attention domain. field eminent trial properly recognized the measure of damages be applied condemnation land- action presentation owner’s case in this appeal. condemnation It from the appears record that the trial court recognized the measure true of damage a case such as be the this to fair market value of actu- the land taken ally condemnation, diminution plus in the fair market taken, remaining land and that the valua- tions were to based upon the fair market value of property for the best and most advantageous it use to which be put. could When the condemner presented evidence, however, trial court switched theory upon which to be proved.
It must be remembered that the right of way condemned for an electric line high in the instant case SO wide and crossed feet two city lots and a 160-acre tract of land these lots ad- adjoining jacent to the City Kansas, of Coffeyville, owned the appellant, A. W. Cline. According Cline’s the total damages to the 160-acre tract of land reason of the line high crossing was $90,000.00 as determined accordance with the measure of dam- ages heretofore stated. In his opinion the market value one $2,500.00 the lots $2,000.00 and the other the market value of these lots after the high line was placed over them was not must, one penny. further be remembered that the line high admitted to be a high line volt with three wires, each carrying that voltage. Other testifying value witnesses on the landowner’s behalf were licensed estate brokers from Coffeyville, real and while their testimony did disclose valuations as the quite high *6 landowners the values were generally consistent there- with. Clark, C. a witness on called as behalf
Clyde appellee, Gas Kansas and Electric was a Company (defendant below), reg- licensed Kansas. Note Independence, istered realtor from that this witness is from a where the land is situ- city foreign Coffeyville ated. The material of Mr. Clark is as follows: Clark, you “Q. inspected Mr. have at and Lots 1 and Block looked Cline’s Westwood Addition? “A. I did. you “Q. damage opinion Do have as an to the amount of Mr. Cline has placed upon by because of sustained the limitation his use these two lots strip agreed the condemnation of it is on each which is 25 feet side of the line is now as it located? “A. I have. What, your opinion “Q. damage by he has sustained reason of the strip? on limitation Object proper damage. Lamb: “Mr. to that as not measure of Objection “The Court: overruled. “A. T.en dollars. your opinion “Q. damaged by is the balance of these lots reason of this right-of-way? No, “A. sir. Now, “Q. you inspected quarter 33-34-16, have also northeast section immediately the tract west of that? Yes, “A. sir. “Q. right-of-way You have examined tire and the on it? line Yes, “A. sir. “Q. your damage, opinion, Now how much has Mr. Cline sustained be- placed upon cause of the limitations his use of the the condemna- strip, agreed tion of this which is 25 side it is feet on each of the line as it is roughly now located and and a half acres. three object incompetent, immaterial, “Mr. Lamb: To which we irrelevant proper damage. and not method in which ascertain the Objection “The Court: overruled.
“A. One thousand dollars.”
On cross examination he asked: was Tyler “Q. you sold, eighty Take the south this did know it was tract acres, $110,000.00? for Object examination, improper “Mr. Scovel: to this as cross there is no testi- mony tract, opinion reference to the value he in his stated damaged other than the limitation on opinion its use. Had been of the damaged balance of the taken tract not there would have been after, testimony as to thought the value he didn’t state whether he before worth a that was thousand dollars or a hundred thousand dollars. qualification goes of the witness. “Mr. Lamb: This there was none. value said “The Court: testified as damaged says dollars. land ten thousand “Mr. Lamb: But he One Thousand dollars. “Mr. Scovel: way inquiry would in that into his idea Court: I don’t believe “The proper cross examination.” in the in- McKown, engaged real estate broker licensed Arch Independence, at years for fifteen surance and real estate business on and was appellee testify was called to the following question: direct examination Now, Cline sus- “Q. you Mr. as to how much do lots these two his use of tained reason of the limitation line strip agreed 25 feet each side it is condemnation of this as it is now located? *7 objection the same reason that our “Mr. Lamb: To which we renew damage. proper question the measure of is not the to secure Well, the courts of Court: the rule is that the measure “The recognized and the value have is the difference in value before after. “Mr. Scovel: This is the limitation of the use. may Court: You “The answer. “A. Yes.” Coffeyville, broker from Fair, real estate a licensed
Floyd following ques- and was asked the of the appellee on behalf called answers: following he gave to which direct examination tions on road and the acres? “Q. the east side of Both the two lots on Yes, “A. sir. Company line Now, Gas & Electric you there is a Kansas “Q. noticed pole lots; no but there is overhangs 1 and in Block Lots these two either lot? “A. Yes. by opinion, damage, your Mr. Cline sustained Now, has “Q. how much by placed upon two lots the condemnation of these his use
the limitations line as it is now strip, agreed of the 25 feet on each side it is this which located? objection as heretofore. “Mr. Lamb: Same Objection overruled. “The Court: twenty say dollars. “A. I would by damaged a whole been these two lots as “Q. the remainder of Has strip? the limitations of use of reason of No, “A. sir. acres, damage, coming how much reference to this “Q. back with Now opinion, of the limitations your Cline sustained because has Mr. agreed strip, by which it is of this acres the condemnation of this 160 his use occupies, approximately located, it is the line as now each side of 25 feet on half acres? and a three objection. “Mr. Lamb: Same Objection “The Court: overruled. “A. I had of Five a value Hundred Dollars. tract, whole, Has the remainder of damaged aas been reason “Q. strip? of the hmitation the use of this .“A. I don’t think so.” he was On cross examination following questions: you Do as to the value have Cline 160 acres? “Q. Yes, “A. sir. opinion? your What is “Q. Object to that as immaterial. Scovel: “Mr. Objection sustained.” “The Court: foregoing testimony is clear from trial court per- case present upon mitted the a appellee theory damages from that entirely presented by appellant different in the case far and even went examination deny so cross the theory upon accordance with damages appellant’s case presented. been instructed
Regardless jury have may respect 'measure of action, in a condemnation manner in which testimony to the presented jury, in view objections presence jury, could had effect no other than to confuse the jury thoroughly. weighed must be expert jurors witnesses witness. other Only permitting as the just any cross witnesses fullest extent in condemna- examination to determine position probative tion action can any *8 must be that testimony. noted opinion particularly value of two witnesses were not licensed real estate brokers appellee’s even from where was Coffeyville property this located. In this con- nection, Clark, Mr. called by appellee, testified on cross exam- ination that he was with in acquainted value of lots Cof- feyville; he had never or sold lots bought any Coffeyville; that'he did not know of any lots sold Westwood any or Additions; Cline and he did not make any as to inquiry any lots vicinity. sold in that limitation cross examination of type witness this was highly prejudicial because the appellant was given no test the opportunity opinion to of the witness rela- to tive values which were the measure of proper damages upon which Furthermore, to case. try this divergence the wide values between the of the appellant witnesses those and have important it extremely made
appellee parties, just witnesses for both examination of of cross benefit witnesses, weigh to position properly to be landowner’s real that a estate seriously question before it. I testimony reason experience is not land values familiar with broker who even locality quali- immediate condemned is it Bench Bar fied Yet is familiar to the and testify expert. to as that real estate from to the land are some- foreign brokers counties witnesses in condemnation action expert paid times called as and per $100.00 for their each of such day party calling services witnesses. Cline,
At the motion for a trial the A. appellant, new W. gave as sworn proffered testimony was excluded of the trial trial upon the of the action. Under the state present of Kansas law this was prop- excluded, it erly but is material information for Bench and Bar to indicate inadequacy of condemnation laws in Kansas to protect of a landowner in a condemnation action.
This testimony consisted of a Cline, conversation between A. W. the appellant, representatives and agents appellee, Kansas Gas and Electric Company, prior the condemnation action. Mr. Cline testified: you Did “Q. have a conversation with him high there before line this was
put your place? across Yes, “A. sir. Tell us you what said “Q. was at between that time and man Sutter. very “A. sorry he thing He said going how across he and it, quite would do what said he could [an] about but he it extensive operation. by-pass place, I him how cost much it would doing figuring said, you. there after some it he well would worth to said, doing figuring, give spot you $29,000.00 after I some more 1 will cash place by-pass stay tract [’] [the off the 160-acre subdivision question]. said, me, go that sounds all tomorrow I will to Wichita up there, take officers and he left. you Did see him later? “Q. Yes, sir. “A. you matter? conversation with him relative to Did have a “Q. Yes, “A. sir. said in that conversation? What was “Q. awfully that, said, Abe, days my I am a few after He came to house “A. surveyed, they go have across where sorry they have decided but your they offer.” turned down *9 $8,500.00. returned The a verdict for court’s I concur in the were rights owner’s prejudicially affected erroneous of the trial court a new trial should granted, further desire to emphasize need great in Kansas for adequate legislation field eminent so domain of landowners may be adequately protected in safeguards. accordance with constitutional (See, Moore v. 840, Kansas P. Turnpike Authority, 384, 2d v. Kansas Turnpike Kan. Authority, 181 Jenkins 317 P. 2d particularly dissenting opinions thereto.)
No. Guaranty Appellee, Sparks,
Loren Topeka, Bank, State Appellant. (318 1062) P. 2d Opinion filed December 1957. Floyd Sloan, Topeka, argued cause, A. Hamilton, and W. Glenn Eldon Sloan, Sloan Topeka, W. all of James were with him on the briefs
appellant. Brock, Topeka, argued Robert cause, L. and Edward II. Sondker and Pringle, Richard Topeka, E. both ap- with him on the briefs for the pellee. The opinion of the court was delivered by This Wertz, action to recover the amoúnt of two J.: checks, payable plaintiff (appellee) drawn on defendant bank (appellant), were protested bank and paid. never case was here previously in Sparks v. Bank, Guaranty State