*1 say employer directly could further and would be go outcome of the proceedings Augusta interested but said, been we do not already view of what has deem detailed necessary. discussion is affirmed. judgment 40,334 Collingwood, Appellee Cross-Appellant, H.
James Turnpike Authority, Appellant.
(310 211) P. 2d *2 Opinion filed 6,1957. April Cowger, Hotchkiss, Lyndon, argued cause, of M. the and Robert of Alex appellant.
Topeka, for him on the briefs was with Topeka, argued cause, Garlinghouse, W. and Warren L. the Wendell Harry Lyndon, Hergenreter, Topeka, Coffman, T. Shaw and William appellee cross-appellant. him on the for were with briefs court by was delivered opinion to The Kansas hereafter referred Turnpike Authority, Fatzer, J.: instituted domain under Authority, proceedings the eminent as 26, 1953, 200, 1949, Ch. (amended G. S. Ch. Art. 1 Laws by G. 68- G. as authorized S. 1955 Supp. 26-102), Supp. S. 68-413, district in case petition its the court by filing 2006 and 12,924 to have certain lands condemned for purposes. Collingwood, appellee, the hereafter to as the H. referred James landowner, a farm subject was the owner of 157.50-acre an to oral tenant, hereafter Collingwood, farm to E. referred to as the lease J. sought Authority which the 11.75 appropriate from acres from tracts. separate four court, appraisers appointed
On August by the district tenant, to the landowner gave notice and August of 11.75 appraisement acres taken in condemnation. 14, 1955, the On landowner and the September tenant filed of appeal notices to the district court from separate award of Three later days appraisers. Authority likewise perfected the district court. appeal its 13, 1956, the district February assigned
On court trial the for appeal. On following day, a Authority filed it alleged neither motion its appeal nor that assigned trial; been had that its tenant appeal involved the and issue raised in appeal same landowner and each tenant; separable three were not appeals person appealed from the assessment other and that no other had prayer the tracts land involved. damages concerning for trial in its Authority’s appeal for an order assigning action determine single sufficiency ap- entirety award, praisers’ including the issue raised landowner the tenant their separate appeals. order,
On February the district court entered an “that motion Kansas Turnpike Authority consolidate the appeals herein be and the same overruled.” hereby (Emphasis supplied.) Thereafter, the was tried appeal jury with landowner plaintiff and the Authority as defendant. No other party appeared However, trial. participated the trial the tenant during testified had he farmed land since 1947 lease pursuant to oral termination; with date specific he was to plant land to wheat in the fall of harvest the and deliver the crop but, *3 share, landowner his he did not or plant wheat other crop fall; that he sublet the land part of east of the turnpike but did or farm not sublet that portion west of the because it; and, he had no access to that the land had a value higher market as a result of the farm lease. A verdict rendered in of was favor $4,002.50. the landowner for In answer questions the special fixed the fair and jury reasonable market value of the 11.75 acres $587.50, taken at the damages for difference in value of the land remaining before and immediately after immediately the $3,415. The taking jury at that the finding farm lease the enhanced the value of land. filed its motion a Authority for new trial on all the statutory as error
grounds particularly assigned the district court’s order its motion to for trial assign its overruling in appeal its entirety as action, was Thereafter, overruled. a single and within the the Authority perfected time its provided, appeal this court. here presented The sole is whether an appeal the in appraisement district court eminent domain proceed- to that court the entirety brought question of ing the sufficiency of taken, the value the land of the award the plus of difference remaining the land of before and value condemnation, to be tried in a single the action with respect an interest claiming having in the land to all parties appropriated. little to make serve extensive It would comment con- contention since Authority’s the the precise cerning question here Turn- in Moore Kansas this court by considered was presented decided, 40,335, held: where was day Authority, pike eminent jurisdiction in the consolidation of the rule followed “In this (G. procedure S. substance but one of is not one of domain cases for trial 60-601). is this rule the court not Under 60-765 and G. S. brought appeals obliged under law to consolidate as a matter of substantive seq., (G. 26-102, S. provisions statute et domain eminent 26-102), particular Supp. parties interested in a of all G. S. 1955 amended parties appeals interested the same tract of different of land. The tract single bring as matter of substantive law a district court do land not (Syl. 2.) action to be tried such.” err district court did not to consoli- refusing It follows for Authority and the trial with appeals date tenant landowner. appeal It the landowners contended cross-appeal.
We now turn to erred in the land- refusing (1) permit that the district court one of the and a Ottley appraisers Mings, owner cross-examine he placed as to whether different value Authority, witness he condemned when filed his appraisement land part on a 18,1955, than when he testified on direct examina- on August report landowner, tion; requested to instruct (2) objection the landowner’s to instruction No. 9. to sustain (3) direct testified on examination that on Ottley Mings 1. August reasonable market the fair and value of the 11.75 acres $587.50; that the difference in land condemned was value $2,250.50, and, and after before was remaining land taken, $2,818. of the land added to the value The report when 18, 1955, fixed filed the value land appraisers $1,175, $1,643, at at taken mak- $2,818. Thus, the landowner of sum allowed a total total ing appraisers awarded exactly sum *4 to Mings. as testified On amount cross-examination same Mings that asked, you “And in different report gave value on the was didn’t given have you today, you?” acres than Objection was 11.75 and the district court question, to that stated: has some discretion Court extent “I think the cross examina- .the impeachment, personally and I don’t think for the tion is wise report all; is, subject get into this at of this court as to the fact contents, report, evidence, any- fact there was such and the á is in and familiarity experience with matters of with that kind one can tell from appraisement there examination that had been such the drift of and report. feel be excluded. I’ll objection.” I should “It is the contents sustain the The landowner then offered in evidence the appraisers’ report to An to that offer was impeach testimony Mings. objection likewise sustained the district court.
The record examined on other clearly Mings shows valuation, and, for values fixed in the phases except ap- did praisers’ permit the district court report, cross-examine to test his Mings credibility. landowner cites 709, v. State Comm. 145 Kan. 67 P. 2d Searcy Highway Comm., 163, State Highway Case v. 156 Kan. 131 P. 2d need decisions not review those foreign jurisdictions. authorities and further extend since opinion this the precise point considered and decided court in presented Moore v. It was there Turnpike Authority, supra. held: “Following Searcy Highway Comm., v. State 67 P. 2d impeach tifie of the extent to which cross-examination of a witness to credibility his will be allowed is one of discretion of the trial In court. syllabus paragraph action such described in of this the trial court did not refusing appraiser abuse its discretion cross-examination of an witness with respect plus to the reasonable market value of the land taken the difference immediately in value of the before and after the testimony his where as to such total value was the same as the total report.” (Syl. 4.) appraisement of such value on the Since did not differ in total Mings’ testimony amount from the total fixed in amount with appraisérs’ report respect value of the land taken the difference in the plus value the land remaining before condemnation proceedings, committed, error was and the prejudicial district court did not refusing permit abuse its discretion the landowner to cross- examine values fixed in that Mings concerning report. the landowner’s considering contentions,
2. In second third to the record is helpful. further reference turnpike right crossed landowner’s farm in a way diagonally southwesterly 100 acres were on approximately direction so the east side and 45 acres were on the way west side. In right the Authority acquired same proceeding land, of land acquired strip farm, also north of his such of land and, strip joined where with an except overpass of a right way over of the turnpike road where township it was wide, 30 feet wider, approximately it was feet long, side of the westerly from a point near paralleled on the north line of point to a landowner’s farm. overpass acquired land was for the strip benefit This *5 48 he could a means of access landowner to provide However, the trial before
reach the his farm. west 45 acres of 27, 1956, the tendered to land- Authority commenced February owner, of land for the easement to this strip and he accepted, to the of his farm. The portion west egress and ingress 20 feet wide roadway to construct an unsurfaced authority agreed north line to to landowner’s and from a near the point overpass repair and road fence such maintain property duty but Authority the landowner. Although fence was placed upon used or road had not been exten- conceded at the trial access trial, evidence was to the considerable intro- sively improved prior had suitable access his west to whether the landowner duced as acres, every interrogated by 45 witness was both and practically it and its effect on Authority concerning the landowner and land. landowner testi- damage, landowner’s title here contends that fied he had no access and access road 18, 1955, August and since an easement Authority vested in 27, 1956, February not tendered until would have for its use was therefore, it, he had no access or use to use trespass been the district court to requested He instruct road acquired. showed on that the evidence land- the undisputed farm; of his portion to the west had no access he was. owner inflicted money damage compensated entitled to be and, date; existed on that as they jury disregard conditions road, the access easement granted all evidence pertaining 1956, and, his respect with remaining, February assess had easement not been made. That though damages request court. the district denied the proper measure of contends landowner should they existed at the the conditions time his land upon be based B. U. P. Rld. v. Andrews, cites C. Co. 26 Kan. appropriated, Co., Rld. L., S. & W. 40 Kan. Ft. v. St. 19 702; Wier Pac. have no quarrel authorities. other with these numerous contention nor with being correct authorities However, the requested instructions, of law. if given, statement out a singled particular undoubtedly claim or have item of would give an undue significance landowner (Smart damage 253; 438, 102 Pac. v.Hill Co., Kan. Co., Railroad Railway 5 Hatchers Digest Trial, ed.], Pac. 489, [Rev. would instruction have required That 342). district p. *6 relating to all evidence to jury disregard court to instruct sole error. The have been that would Manifestly, access road. was to benefit the access road acquiring it didn’t benefit acres—that to his west 45 access provide Furthermore, did not spring of access his right is clear. 27, accrued on 1956—it February on from the formal transfer the access 18, 1955, he had a to use right consequently, August 40, §§ 39, Am. (52 Trespass, a being trespasser without road Jur. 49, 866, 867; While p. 1003). right C. S. pp. Trespass, 87 § J. and unsuitable to inadequate of access have been so may all, at his lack of to use ability amount to no access factually to or other conditions of area access road due topographical evidence to be considered was not by jury, was a subject of determined the district by Obviously, a law to be court. question of to instruct the a matter jury have been law improper would Moreover, no access to his west 45 acres. the landowner had instruction requested to the relating landowner’s portion for the inflicted money in by conditions compensation was covered fully existed they by other in court. The the district refusal give to structions instruction in the specific of an instruction manner requested or a portion is not substantially is covered the same other error when instructions The refusal to give court. the district instruction or a portion manner in the specific requested is an instruction not error when covered substantially by other is the same instructions (Chapman 86 P. 2d Kan. Boeck v. 149 Bergholt, Co., Katz Drug 506; 5 P. 2d Hatcher’s Kansas Digest ed], 155 Kan. [Rev. The district court did Trial, not 337). err p. in refusing requested instruction. the landowner’s give third contention inis 3. The a reality continuation effect of which argument, was previous of his the district court jury tire instruct instruction No. 9 properly did not that damages were to be considered land as of time of the reads: instruction appropriation. tending introduced this lias been case “Evidence to show that at the question appropriated, land in time the
same defendant also condemned plaintiff’s strip tract north land, on the of land strip which overpass point township near from a extended road over said turn- plaintiff’s pike point you line of on the north land. If pur- find that the provide condemning strip plaintiff pose said was to with a means of access turnpike, his land west of reach he could strip then said ais plaintiff’s remaining matter which affected the condition of land as it was im- you may mediately purpose. after the consider the same for that important any grant did “It is not defendant not execute written plaintiff right use said road access until the commencement of By accepting grant, however, plaintiff this trial. did not waive any hazard as to or inconvenience in connection with the the use of sufficiency, maintaining said or or access road such cost access road improvements thereto, necessary you may should consider what be regard determining the evidence in such shown matters the value of plaintiff’s remaining taking.” as it was We do not believe instruction susceptible No. was to the land objection. owner’s In Common Casner v. School District No. 551, 265 2d said: P. . a cardinal rule “. . It in this state that instructions must whole, be considered as a and all must be considered to determine whether *7 theory party presented, and contentions of each are and an in erroneous require struction of itself does not reversal if all the instructions considered - together substantially (Wing state law of the case. v. Mid-Continent Seeds, 78; Digest Ed.], 170 225 P. 2d [Rev. Hatcher’s Kansas 186; Trial, Digest, Trial, (l. [1].)” 556.) 9 West’s Kansas § c. When all of together the instructions are considered think we landowner, and contentions of the as well theory as the Author- ity, fairly presented jury. were to the Instruction No. 6 informed of the jury date Nos. 7 and 8 clearly that land remaining stated to the was the difference in and immediately value before after taking; and it and weight No. 9 to be given left credence to evidence in- troduced as to whether the Authority condemned such strip land to a means of access which provide the landowner could acres, find, and that if reach his west it did so then that fact was matter affected the condition the land remaining and in determining considered was to be landowner’s In damages. addition, emphasized instruction that the time of computing “as was it damage the taking and you for that purpose.” Moreover, consider the same may partic- is that this instruction significant ularly clearly informed the jury that easement, did by accepting not waive any ques- hazard, or inconvenience in any connection tion as with the use road, its sufficiency, or or the cost the access maintaining such thereto, and road, necessary improvements directed the jury that such the evidence should consider in matters determining remaining. the value district given by all the instructions reading carefully
After to the fairly presented they are convinced court we claims contentions, him what he and did for and theory district concluding hesistancy We have did not do. they and jury, partic- of its instructions not err court did 9.No. instruction ularly court in over- district erred lastly contends landowner conclusions here- In view of the trial. motion for a new
ruling his think it to we the district say this suffice opinion, forth in tofore set motion. overruling did err not court record find no reviewed the error. carefully have affirmed. is judgment J.,
Wertz, dissents. I am unable to concur the construc- (dissenting) Fatzer, J.: 26-101, 26-102, G. 1955 Supp. S. S.. 68- G. placed upon tion 68-2006, from 1 of cor- syllabus and dissent 413 and ¶ The views stated in the opinion. dissent- portion responding 40,335, Turnpike Authority, v. Kansas No. of Moore opinion ing , my forth views decided, question. set To re- briefly day unnecessary reference opinion them iterate here is dissent. my grounds for the 40,335 of Land Condemnation Matter of the Kansas Turnpike In the Appellee Cross-Appellant, Moore, Project. Ethel Ora *8 Turnpike Authority, Appellant Cross-Appellee. 199) (310 P. 2d