83 Kan. 7 | Kan. | 1910
The opinion of the court was delivered by
In 1906, and since, McKnight was and has been the owner of a tract of about 138 acres of land in the city of Wichita. The tract was unplatted, and had been used as farm land, although McKnight had had it surveyed and mapped into residence and garden plats. No plat thereof had been recorded. A' widely meandering stream, called Chisholm creek, which ordinarily flowed only a small stream, but occasionally was deep, extended through this tract.
Early in 1906 the city, after proper proceedings, appointed appraisers to condemn a strip of this land 150
McKnight appealed from the award. The cause was tried to a jury in the district court of Sedgwick county, and a verdict was rendered in favor of McKnight for $17,757.41, $16,148 of which was for the damages found as of date, August 27, 1906, and the remainder being interest at six per cent from that date to April 25, 1908. Judgment was rendered in accordance with the verdict, and the city appeals.
At the time of the trial the evidence showed that the digging of the canal at least had been completed through the tract, and that the canal extended some distance toward the river southward, where it emptied into Chisholm creek, and that at the time of the trial there was a continuous flow of water in the canal; that the canal had been excavated fifty feet wide at the top, and from a minimum of six or eight feet to a maximum of thirteen or fourteen feet deep, and that the earth taken therefrom had been piled on either side of the canal unevenly, some places practically covering the entire right of way on either side, and being in places twelve or fifteen feet high.
On the trial considerable evidence was admitted pro and con as to the cost of filling the old bed of Chisholm creek, and also evidence that whereas prior, to the digging of the canal the creek at its lowest stages was still a flowing stream, after the canal was dug and the water diverted there were stagnant and offensive pools
The principal contention and complaint of the city is that the canal was not completed, or at least that the piles of earth along the canal were not intended to be left there permanently, and that it devolved upon McKnight, if the damages were to be appraised as they appeared to be at the time of the trial, to show that the work was completed. The rule of law appears to be that when damages are appraised at the condemnation of land for a public purpose, as the damages were appraised in this case by the appraisers appointed for that purpose, it is to be presumed that the work will be done in the proper manner, and in such a way as to avoid any unnecessary damage to the landowner. Where, however, the work upon the condemned land has been completed before the time of the appraisement or trial, evidence may be offered and the case determined upon the conditions as they then exist.
Evidence in this case was offered that the work was completed through the plaintiff’s land six or eight months before the trial, and in the absence of any evidence to the contrary it was fair to assume that the work was fully completed. The city attorney in presenting the case, however, said he would offer in evidence the original plans made by the city engineer some two years before, to which objection was made and sustained. There was no evidence, or-offer of evidence, that these plans had been approved, or that the contract for the making of the canal had been let upon that basis. Questions were asked, however, of-the mayor at the time of the trial as to what had been done with
On the trial the city contended that the tract of land was simply a farm, and was valuable only for farming purposes, and requested instructions to the jury on the basis of damages for the land actually taken and to the remainder as one entire tract. In this court the city contends that the tract had been divided into building and garden tracts, and that no damages should be allowed except as to those tracts cut or touched by the canal. The proper basis for damages was the value of the portion of the tract actually taken for the canal and right of way, and the difference in value of the remainder of the tract immediately before and after the appropriation of the land. This value may be proved for any and all purposes for which the tract was adapted, and this is just the character of evidence that was offered in this case.
In one instruction the court seems to have assumed that the land was more valuable for residence purposes. If this was erroneous it was not prejudicial, as the question was fairly submitted to the jury, and they determined that it was more valuable for residence purposes than for farming.
Again, it is contended that the damages found by the jury were so excessive as to be evidence of prejudice,
That the proper basis of damages is the value of the tract actually taken and the difference in value of the remainder of the tract immediately before and after the taking has been so repeatedly, decided in this and other courts that the citation of authorities is unnecessary.
We think, also, that the evidence fully justified the assessing of damages to the tract as a whole, and not to the several tracts into which it had been surveyed and mapped, although not platted.
■ The city urges that the unity of use should determine the question, and not the contemplated change of use. The evidence was undisputed that the entire tract had been used for farming purposes, and it was so stated by witnesses called by the city. This principle of unity ■of use has been applied generally where two or more tracts owned in severalty by different parties were used for one purpose. (Comm’rs of Smith Co. v. Labore, 37 Kan. 480, 483; Irrigation Co. v. McLain, 69 Kan. 334; Railway Co. v. Roe, 77 Kan. 224.) In the case last cited it was said:
'“In framing his petition the plaintiff was entitled to*12 claim damages according to the most advantageous use he could make of his land. If, for example, taking-the entire body of lots as a whole, they could be used most profitably for fruit raising, or as a vegetable garden, or for a dairy, he might have sued for and recovered damages to the entire tract on that theory, and the circumstances that the lots were separated by streets and alleys would not have stood in the way. On the other hand, if the chief value of the property, or some of it, should lie in its marketability as ordinary city lots, the plaintiff would have the right to take advantage of the municipal subdivisions and claim damages to all those, and to those only, which were decreased in value by reason of the condemnation. If the depreciation in value should extend across lot or block lines or streets or alleys the damages should be coextensive with the injury, since nothing less would afford compensation, and it is the purpose of the law to secure to the landowner, full compensation.”' (p. 226.)
We find no prejudicial error in the proceedings, and the judgment is affirmed.