*1 district given by the instructions reading carefully After jury to the fairly presented they that are convinced court we claims contentions, him what he and did for and theory landowner’s district concluding hesistancy no We have did not do. and jury, partic- of its instructions not err court did 9.No. instruction ularly in over- 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 and record find no reviewed the error. carefully We affirmed. judgment J.,
Wertz, dissents. I am unable to concur the construc- (dissenting) Fatzer, J.: 26-101, 26-102, G. 1955 Supp. 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 made 40,335
No. of Land Condemnation Matter of the Kansas Turnpike In the Appellee Cross-Appellant, Moore, Project. Ethel Ora Turnpike Authority, Appellant Cross-Appellee. Kansas 199) (310 P. 2d *2 Opinion filed April argued Hotchkiss, Lyndon, Cowger, Alex the cause and Robert M. of Topeka, appellant cross-appellee. with him on the for and was briefs Martin, argued Harry Crane, Topeka, Ward D. and A. Arthur cause Claussen, Harvey Ashworth, Topeka, L. and D. all of were with him on the appellee cross-appellant. briefs for the and opinion The court was by delivered This ais condemnation appeal. Hall, J.:
The Turnpike Kansas domain Authority instituted eminent proceeding by virtue of under of G. S. authority provisions its 26-102, seq., et by authorized G. S. 1955 68-2006. Supp., involved several three proceeding including tracts of tracts this appeal. tracts of land three involved owned appeal by were Moore, Ora Ethel appellee subject to lease Perry Jones products and production limestone road rock and the farm G.
tenancy Raymond Rriggs. The entire unit contained 160 acres which the condemnation by from the appellant Kansas Turnpike taking amounted to a of 14.73 Authority acres. were
Appraisers appointed by the district court who made their appraisement. report
Thereafter, within provided statute, and the time by Ora Ethel each filed Perry and Moore notices appeal. Like- Jones ap- notice of its separate filed wise, Authority Turnpike the Kansas party. taken other were appeals No other peal. Turnpike course, court notified the Kansas due Ora Moore Ethel Ora Ethel Moore
Authority and mention was made con- 1956. No January for trial on was set cerning appeal. the Perry Jones for an order Authority then filed motion Turnpike
The Kansas and entirety assigning single in its as a assigning for trial its award including action Perry raised Ora Ethel Moore their issues both Jones words, In other Turnpike the Kansas moved to appeals. Authority discretion, law, as a consolidate matter of the Moore one trial. appeals into Jones
The motion heard and overruled the court. The court made the order. following Is, Adjudged "It the Court that Ordered Therefore, Considered, Turnpike Authority of Kansas be tried at the same time as the *3 appeal appeal Perry of Ora Ethel Moore and that be heard Jones separately.”
The case was tried to a Ora jury with Ethel Moore and the Kansas Turnpike Authority as the only parties to the suit. At the conclu- sion of the trial the jury returned a verdict in favor of the appellee $4,015.22, $1,473.00 Ora Ethel Moore for the sum of being $2,532.22 taken damage to remainder. The Kansas filed a motion for trial Turnpike Authority new as assigning par- error the order of the court ticular its overruling motion for trial of entirety. the action on its its motion for new trial was was then taken Appeal overruled. to this court. three specification makes
Appellant errors but in his brief and stated: argument oral question involved ‘Does an “The sole to the District Court from proceeding bring appraisement in an eminent domain to the District Court entirety of the single
in its award to be tried a ” parties?’ as to all action appellant cross agree Appellee is the question in- appeal but raise this in appellant’s volved additional question on appeal: cross appeal of Ora Ethel Moore: Did erroneously the cross “On Court limit appointed appraisers of the court examination
the cross where testified trial?” at values different this court to declare as urges a matter of Appellant substantive 54
law that under the of the eminent domain statutes provisions (G. 1949, 26-101, et as G. S. amended 1955 seq., Supp., 26-102) an to that single action to be brings such, tried such action into many without separate separating actions as there are interested in the parties particular tract involved in the appeal. of his support position appellant cites authori following States, 210; v.
ties:
United
169 F. 2d
Bogart
Carlock v. United
States,
926;
Rossi,
1092, 64
2d
53 F.
St. Louis v.
333
City
Mo.
S. W.
600;
488,
785;
2d
v. Railroad
77 Kan.
Pac.
Dye
94
Federal Land
Comm.,
187,
v. State
Highway
72;
Bank
Kan.
2dP.
G. S.
26-101;
1949,
& C. P.
Co.
K.
v.
4 Kan.
Rly.
Phipps,
45 Pac.
App.
926;
States,
Kohl Et Al.
United
91 U. S.
449;
23 L. ed.
States,
751;
v. United
2d
Meadows
F.
Newton Trust Co. v.
Revenue,
175;
Internal
2d
Commissioner
160 F.
Reiter v. State
Commission,
Highway
281 P. 2d
State ex rel.
Hall,
McCaskill v.
Mo.
28 S. W. 2d
69 A. L. R.
Commission
In Federal Land Bank v. State Comm., supra, court said: nothing “. in that statute which There indicates or leads to the *4 particular ground conclusion petitioner that as to a tract might appeal landowner, versa, as to the lienholder and not the or vice or that the lienholder appeal separately petitioner could landowner, as between the and the or that appeal separately the landowner could petitioner as between the and the lien- holder. The if appeal, statement one of the three an action shall provides be docketed and tried. procedure The statute up its own to
point appeal perfected. where the accomplished When that has been ‘an shall action be docketed and tried the same as other actions.’ We are of opinion that under the statute there separation is and can be no as between parties. appeal taken, petitioner Whenever an either or the land- lienholder, bring owner or the effect is to to the district court in its award, of that issue entirety question and the trial only subject parties, to their on all of court is conclusive in the district right appeal .” this court. . . in a also referred to later on such appeal nature of the issue The Commission in State this court said case where supra: 26-102), (G. Supp. under which that was “The statute appraisement
taken, provides petitioner dissatisfied with the if the shall be shall, thirty days, with clerk of file a written notice he within court, whereupon and tried the same as other it is to be docketed in such is the amount of be determined The actions. appropria- damages, any, compensation on account of the if to be awarded question. . in . .” tion the condemnor of the v. Railroad Dye supra. stated this rule Our Court also has proceedings compliance Apparently conducted in with were “. . . statute; thereby company, became vested the railroad the land damages money transferred to the owner or owners of as awarded Any might appealed from the award of land taken. dissatisfied owner court, tire amount of could the commissioners to the district where right. jury. plaintiff in error exercised this submitted to a have been having parties interest in and all the land must look such cases owners allowed, damages, finally compensation, damages, as such so far concerned, place appropriated. are take the of the land as the landowners 490, 491.) (pp. . . .” Also: eminently just proper rights parties that the “. . It seems of all proceeding, have been determined in the same in this fund should
interested (p. 492.) possible. speedily and as denied the to show separately Court has the value of Our Commission, v. State Highway interests in Reiter supra: mineral gravel proceedings, sand and in the condemnation land are considered "In realty separate part valued from the value and are not to be of the land (Syl. 2.) as a whole.” sand, deposits gravel valuable the land taken contains or other “Where compensation deposits, is the the measure of market value of the land valuable it, deposits and the value of the minerals cannot be shown with (Syl. 5.) separately.” rule” is well established in some action “single jurisdictions. States, Et Al v. United supra: case is Kohl leading A is, assignment of error Circuit Court refused the de- second “The below, plaintiffs error, now for a trial defendants mand of the They property. were estate lessees of one of the of their the value taken, sought demanded a parcels of the value *5 demand, interest; required of their their and but the overruled jury parcel, appraise should lot or that tlie and lessees should try directing same the value of their leasehold estate therein. trial, required of the lessor and course the lessees each separately jury, to state nature their estates to the of lessor to offer his testimony theirs, separately, government then and the lessees and testimony lessees; answer the lessor and and the court instructed jury separately to find and return the value the estates of of the lessor and complain. They contend, the lessees. It this that the lessees of proceeding right whether is to be treated as founded on the national of domain, State, having given eminent that of the its consent been legislature (70 Laws, 36, 1), enactment of the Feb. State Ohio sect. required proceedings practice it was to conform to the in the courts of said, requirement, in like This cases. it is was made the act of Congress But, admitting 1872. 17 Stat. that the court was June practice proceedings bound to conform the in the State courts in like cases, perceive we do not error committed. Under the laws of Ohio, regular joint proceeding against it was to institute a all the owners proposed (Giesy 308); taken. v. C. lots W & T. R. R. St. Ohio eighth gave but the section of the State statute owner ‘the or owners of each separate parcel’ separate case, therefore, to a trial. sep- In such a proceeding arate trial is the mode State courts. The statute treats all gives parcel party, collectively of a as one owners to them a trial government from the trial of the issues between the and the owners parcels. extent; required of other It hath no more. The court is not each an parcel, allow a trial to owner of estate or interest in each justice no consideration of to those owners would be subserved it. . .” 377.) (p. also, See, the following States, cases: Bogart v. United supra; Revenue, Newton Trust Co. Commissioner Internal supra; States, Rossi, v. United supra; City Carlock St. Louis v. supra; States, rel., Hall, v. United supra; Meadows State ex McCaskill v. supra. rules reason for the followed in these cases that an eminent one rem. Some proceeding early
domain ICansas cases followed that principle. proceedings “Condemnation under the essentially proceedings statutes are rem, (K. Rly. Phipps, & C. P. App. 252, Syl. 2, 926.) Pac.
While the decisions this court in the past indicated a proximity to the “single follow action rule” has done actually so and its recent decisions are the other direction following respectable authority. line equally Kansas condemnation statute may also be distinguished *6 action rule.” G. S. following “single
from jurisdictions some 1955 26-101, as amended S. 26-102 seq., by Supp., pro- et G. vides as follows: petitioner any any “If the or or lien holder of record of or the owner lot parcel ground appraisement of condemned shall be dissatisfied so with
thereof, appeal shall, thirty days, he file a written notice of with the within thereof, approved give by clerk of for said court and bond the costs to be clerk, thereupon said an action shall be docketed and tried the same as (Emphasis ours.) other . actions: .” . statute disjunctive foregoing The use of the indicates owner of an legislative property may intent that each interest his property. a trial for the of separate statute, 26-102, S. In the of G. 1955 part Supp., latter legislative indicative of the language we find additional is intent, as follows: compensation finally any awarded “. . . to owner or lien If the holder paid him, judg- been the court is less than the amount that has to shall enter overpayment. against the condemner for the
ment
him and
favor of
The
holder,
acceptance
owner,
party
by
interested
lien
or
of
full amount
commissioners,
paid
amount
of
or the
into the court or
the award of
condemner,
part
by
the verified
or
as set forth in
statement
declara-
thereof
aforesaid,
prejudice
said
shall be without
to
tion of
condemner
of
landowner,
holder,
party,
provided herein,
or
lien
interested
said
compensation
by jury trial,
determined on
and final
the issue
of
(Emphasis ours.)
judgment of the court.”
of
well stated
Holmes
authority
other line
is
Justice
Boston,
189, 54
Boston
217
S.
L. ed.
Chamber
Commerce
U.
725,
interests
making
separate awards,
assessed,
separately
.
rather
.
be
should
making
single
award and
determination
than the
the court of the
parties,
proper
rights
relative
of the interested
sufficient where there
ownership
dispute
prop-
or
different
is no
as to
as to the
interests
erty.
Dom. V.
24.4:
Nichols Em.
§
joinder
proceedings
ordinarily
“The
or
condemnation
consolidation of
dependent upon
provisions
under which
are
statutes
authorized.
Generally,
persons
injured
joined
may
or
whose
is taken
in one
proceeding. However,
separate takings
where the
arise from
or in-
juries
part
project
joinder
improper.
which are not
of one
such
“Where,
separate parcel
statute the owner
of each
or owners
is assured
separate trial,
necessary
of a
is not
to afford
the owner of
parcel.”
each
in such
estate
interest
District,
And in State v.
Valley
Platte
Public Power and Irrigation
*7
289, 23
300, 166
147 Neb.
N. W. 2d
L. R. 1196:
A.
“Generally
approached
problem
standpoint
the courts have
the
from the
determining the value of that which the
has
owner
lost rather than
which
that
gained.
Boston,
the condemnor has
In Boston Chamber of
v.
217
Commerce
189,
725,
Supreme
459,
U.
54
S.
L. Ed.
30 S. Ct.
the
of the United
Court
require
disregard
States said:
‘But the Constitution
a
does not
of the mode
ownership,
require
parcel
the state of the
does
title.
It
not
of land
—of
as an
valued
unencumbered whole
it is
when
not held as
unencum
merely requires
bered
property
whole.
It
than an owner of
taken should be
paid
persons,
for what is taken from him.
It
with
with
deals
not
tracts of
lost,
land. And
is what has the owner
not what has the taker
gained.
regard
entirely plain
petitioners
We
that
were not entitled
damages
as a matter of law to have the
if
estimated as
the land was the sole
property
owner,
one
recently
.
.
.’ That the court has more
said:
‘It
loss,
gain,
.
.
.
tlie owner’s
not the
which
taker’s
the measure of
compensation
property
for the
taken
.
United
.’
ex rel. T. A.
States
V.
Powelson,
266,
1390,
v.
319 US
L.
Ed.
Also at A. L. page (166 R.) court said: requiring just compensation “The rule each owner for that applied taken be any must in all instances under our ‘. Constitution. may rule given that be laid down must itself be measured the rule Constitution, any rule that so limits the in such case as that just compensation result will be in injury fact less than suffered falls Brown, short City constitutional measure.’ of St. Louis v. 155 Mo. 56 SW It seems to us also those courts which have under- taken to limit the total to the award value of the unencumbered whole have many overlooked the factual situation exists in of these cases where there personal property right damaged, is a taken or in property addition real damaged. Obviously, taken or the value of the real should be not recovery limit of in such cases.” of a of the owner separate interest recognizes the This court compensa to a award leasehold estate 1009; State Co., 92 Kan. Pac. tion. v. Railroad (Bales v. Commission supra; v. Comm. 850; v. City 226 P. 2d and Miles Stores, 170 Kan. Safeway 723, 267 Wichita, 2d P. 943.) In contention. accept jurisdiction appellant’s We cannot not one of of cases for trial is sub- in consolidation rule followed 1949, 60-765, S. provides: G. procedure. stance but one pending might in the same court which two or more actions are “Whenever may, joined, motion and notice to the been the defendant adverse have consolidated, require why party, shall the same be him to show cause several shall be consolidated. order if no cause be shown said actions may judge made the court or thereof vaca- for consolidation be tion.” of the consolidation statute whether requirements
One been or could the first instance. G. joined not the actions 1949, 60-601,provides: petition, plaintiff may unite causes of action in same “The several legal equitable,
whether such as have been heretofore denominated parties causes so united must or both. But the of actions affect action, mortgages except or other liens.” in actions enforce consolidation under the sound Motions for these statutes are Hart, (Railway App. discretion of the trial court. 7 Kan. Bros., & 26 Kan. Hodge 51 Pac. Rice Floyd 2d 80.) Petroleum 112 P. Todd Central refusing showing absence of of abuse discretion *8 trial, to for the judgment consolidate these the appeals court abuse of discretion will be affirmed. No is shown here.
Appellee ruling and cross the specify error the appellant cross-examination of limiting appointed the court the appraisers.
On trial of Authority the this action Kansas appellant Turnpike called appointed appraisers the three court witnesses. These filed official appraisers had their and previously appraisement re- port.
The appeared as follows: report $1,841.25 taken “Land .................................. Damages............................. 1,104.94
All other $2,946.19” Total ...................................... testimony was as follows: appraisers’ At trial the the value of the land ac- “Fair and reasonable market $1,104.75 quired ..................................... 1,841.44 taking Difference between and after values.. before $2,946.19” Total ...................................... the cross-appellant attempted testimony and to Appellee impeach on contradictory the witnesses or inconsistent state- the basis objection. ments. The sustained Searcy State case law in
Roth cite the parties same Comm., 67 P. 2d where the court said: way “After trial had been under one of the commissioners the who made appraisement highway the the testified behalf of commission as to the fair damages During market of the land taken and the to the remainder. permitted testify his cross-examination he and was asked to the about amount objected highway objection The the commission to and award. this the urges here that was overruled. commission this was error. evidence by should not have been The amount of admitted. the award made the in a commissioners condemnation case in evidence admissible and it proper jury Rly. is not for a told amount K. & be of it. In C. N. Broquet, railway by company action Pac. was right way. for a the trial condemn land At on the trial court told jury by tire made what amount of the award the commissioners was. This error, and court held this was said: by evidence, made ‘The award the commissioners was not admissible presenting the court not warranted in amount of the allowance as fact taken, jury. upon When case is tried de novo new evi- dence, competent award of the commissioners no more than would jury upon justice peace verdict of the former from a opinion only to the district court. It is of the commissioners as to the sustained, statement amount awarded them is hear- admissible, say evidence, which is not whether stated a witness or 572.) (p. court in its charte.’ “See, also, A., (Mo.), v. Brown 95 S. W. 2d B. & A. Rail Smith, road Co. 132 Ga. 64 E. 1073. points questions “The landowner out that these were asked the witness on opinion cross-examination after he had testified on direct examination as to his proper questions value of the land were market on cross-examina- credibility pointed tion to test the of the witness. In this connection it is out jury trial court instructed the that this should evidence not be con- determining sidered property. it in the market value of the We hold that such evidence was not of purpose such a nature it was admissible testing credibility of the witness. Had the at some witness other time altogether said the worth to, land was some different amount than he testified questioning might about permitted statement been for the sake attacking credibility, his but here testified as he to the same amount. *9 Comm., in Case State court this rule applied 696, the land testified 2d where witness 131 P. that acre, admitted cross-examination but $70.00 was worth at an acre. The allowed $85.00 had previously appraised he that this inconsistent jury and instructed cross-examination a witness. credibility as go statement would his of the testimony whether or not the case is this question than the report appraise- amount fact a different was in appraisers ment. total amount figures from observed the above
It will be that in answer to the question shows differ. The record did not land, on the one the witnesses different value was set to whether no,” I way. say, it that will and then didn’t understand testified: “I did; think I it doesn’t substance, appear I don’t “Frankly, in the record.” way 2d Co., 156 Kan. 135 P.
In Gant v. Service Gas said: of a “The cross-examination witness im- of the extent to which peach credibility of the trial will one of discretion court.” his be allowed is shown, the being error prejudicial Under these no circumstances was well within ruling court did not and its abuse its discretion rule of Searcy case.
The judgment is affirmed. holding I believe the court’s do not (dissenting): Fatzer, J. corresponding portion 1(c) syllabus ¶¶ 68-2006 pro- S. 1955 Supp. decides case. G. opinion correctly eminent domain vides in when part acquired conducted, that, compen- “Any proceedings such shall be in the manner paid, pro- sation to be shall be ascertained paid then to condemnation or applicable vided laws of state domain the state highway of eminent power the exercise 68-413 authorizes Supp. commission . .” G. S. 1955 domain, and pro- titlé eminent acquire Commission to domain when of eminent exercised vides “The part, provisions with the of article herein shall be in accordance provided 1949 or amendments Statutes of Chapter of the General thereto, therein lienholders required and in addition to the notice also be notified. condemned land must record of the "... filing petition provides G. S. 26-101 *10 ac for which the land to be setting sought forth the is purpose name of and the ground of each lot and quired, description parcel a of of such by county.” owner ... shown records the the 187, State, rel., In Kan. 182 P. 2d ex v. State Comm. 163 Highway 127, it was held trial court must determine that the land the first Commis sought acquired necessary purposes is sion an (the that when affirmative determination Authority) made, on the Commission and can binding (the Authority) not be In G. 68-2006 collaterally Supp. attacked. S. 1955 provision is made that title to condemned shall any property by Authority the immediately vest in and it shall im Authority the be entitled to the possession mediate of the same the upon depositing with the clerk total fees, amount the appraised price, court costs and notwith standing any the to such parties shall proceedings appeal from the appraisement.
From these proceedings it is apparent that basic two matters are first, dealt itself, with: land the described in petition (State, rel., ex v. State Highway second, supra); compensation Comm. remaining for the land taken together with damages, if any, to the land (Fe Land Bank v. State Highway Comm. 150 Kan. deral 187, 72; 92 P. 2d State Highway Commission v.
427, 207 P. 2d
480).
proceeding is essentially one in rem
& C. P.
(K.
Rly. Co. v.
4
Phipps,
Kan. App.
Syl.
tive the first G. S. Supp. reads, “If the petitioner or landowner or lien holder of record. (Emphasis legislative ours) indicates intent that trials are afforded those entitled to from appeal the award of the ap- praisers. This has held to the contrary. In Federal Land Comm., Bank v. State supra, it was held: “Whenever, (G. Supp. 26-102), under Laws ch. S. 1937 § court, petitioner is taken to the district either the land- appraisement proceedings owner or made a lienholder from an in eminent 26-101, bring had domain under G. effect is to to the district award, entirety court in its parties, subject only conclusive on that issue in the district supreme (Syl. 1.) court.” to their And, in the it was opinion said: perfected, “It will under observed that that statute serving any parties might occupying notice on what be called an adverse position; perfected by it is 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 ground petitioner might appeal tract of as to the lienholder and *11 landowner, versa, not the appeal separately or vice the lienholder or that could petitioner landowner, as between the and the or that the landowner could appeal separately petitioner landowner, as between the and the or that the appeal separately petitioner
landowner could as between the and the lien- holder. appeal, The if statement is that one the three an shall action be provides procedure docketed and up tried. statute its own to the point perfected. where accomplished the is that When has been 'an action shall be docketed and tried the same as other actions.’ We are of opinion that under separation the statute there is and can be no as between parties. taken, petitioner Whenever an either is the or the land- owner lienholder, bring or the effect tois to the district in en- its tirety question award, the of the the trial of that issue parties, district court subject on all only conclusive to their (pp. 189, 190.) to this court. . .” . before the district court the motion assign to appeals for trial in a action single was not whether the ap- landowner, tenant, peals of the or the Authority should be consolidated, but severed, whether could be in the Federal Land case, said, Bank supra, “We are opinion that under statute there and can be no as separation between parties. . .” (Emphasis ours.)
It said, was further appraisement “What division of the or award there is to be him between court, equit- the landowner must still such in as the the exercise of its power jurisdiction, able may proper. amendments, think Prior to required, possible when no notice ato lienholder it was was for the land- appropriate owner appraisement himself, to or award to for entire no required notice given to The two amendments lienholder. recognized equitable appraisement that the lienholder had an interest provided protection. matter, award and for we view the its As makes may appeal no appraisement; who on trial in the district difference from same, is, appraise- court the issue is the not the whether or amount damages adequate compensation taken and the to merit lands for (Emphasis (pp. 191.) ours.) lands not taken. interests Our decisions owners’ are to the effect the various allowed are transferred to the award property condemned taken and damages them for value of the land compensate to Phipps, & C. Co. v. (K. P. Rld. remaining Sheldon, & Co. C. K. W. Rld. Co. supra; Dye Railroad supra; Bank v. State 35 Pac. Federal Land When Comm. Commission v. supra; supra). office, interest having the award paid anyone into the clerk’s may pro the land or a claim the fund take appropriated upon & ceedings protect or claim K. W. Rld. (C. his interest Sheldon, v. Railroad supra; Dye supra). in a of real parcel
Where there are several interests or estates domain, estate taken rule is that the prevailing eminent interest or proper method of the value of each estate is fixing whole, determine the and then apportion the& among according respective same the several owners interests or rather than each interest or estate as a estates to take unit and fix separately. the value thereof A few of the numerous 25,936 are: support authorities this rule United States v. Land, Etc., Rossi, Acres 153 F. St. (2d) City Louis v. 333 Mo. 64 S. W. 2d many authorities cited therein in effect indicating England, that this rule is Massa chusetts, Illinois, York, Minnesota, Kentucky, New Jersey, New *12 Oregon, Pennsylvania, Washington Wisconsin; River Grand Okla, 547, 100; Dam v. 192 Authority Gray, 138 P. 2d Lake Eagle States, 182; al. Improvement Co. et v. United 160 F. Meadows (2d) States, 751; State, Hall, v. United 144 F. rel. ex McCaskill (2d) v. 165, 80, 1256; 325 28 S. A. Mo. W. 2d 69 L. R. Carlock v. United States, 926; States, 210; 53 F. v. Bogart United 169 F. (2d) (2d) States, 367, 449; Kohl et v. 91 al. United U. 23 L. ed. 6 Nichols Domain, [1], 4; Eminent (Third ed.), p. Jur., Am. Emi §24.1 Domain, 316, See, also, nent 960. p. extensive notes in 69 A. R.L. § 1263, 260, L. 98 A. R. 166 A. L. R. 1211. The following decisions of this C. & this court view: K. support Sheldon, W. Rld. Co. v. 172; Co., 491, 492; v. Railroad supra, Dye supra, pp. & p. C. K. P. Phipps, supra, p. St. Rly. City Rossi, v. Louis it was said: supra, general “The well-established rules of eminent domain seem to be that piece property taken, ownership a is in which when the is divided into owners, public it considered interests, and the is between the that as several upon right the land itself without estate; public is exercised the one that interest; the amount of value of the the. regard the to subdivisions no concern is entitled is the interests each one the owners land to which property are condemner; interests the various owners’ of the compensate in- fund, damages them for the transferred to the allowed as taken; property that the value jury land, which substituted for is pay cannot and this value property condemner must taken all that is persons among own- by any the different contracts or distribution be increased parts it; the whole. ing all the cannot exceed and that the sum of in interests (1. 1102.) c. Phillips, Judge Chief controversy, On same in a Kansas point States, said: in 169 F. (2d) v. United Bogart proceeding is proceeding and when land in rem “A condemnation is an persons, separate by more two or taken in interests or estates are owned owners, regarded One public as one estate. and the it is as between compensation land made and just award for the entire value of equivalent place property appropriated thereof. as the of the stands separate interests or estates distribution of the award between the owners public wholly therewith.” them not concerned is a matter between property That an a an owner owner of leasehold interest is compensa- to share the constitutional sense and entitled eminent tion all or leased is taken part when of the property 92 Kan. domain is well settled. Railroad (Bales v. Stores,
Pac. Commission Safeway City P. 2d 170 Kan. 228 P. 2d Miles of in Rut, share Wichita, 2d 943.) 267 P. sep- separate such owner to award does not entitle jury compensation arate to determine domain in-
interests eminent appropriated. One proceeding the land described for which acquire stituted in the instant case to be made. only may one award “The supra,
As in State Commission v. stated com- in such amount of to be determined if awarded damages, any, ap- account pensation in question.” condemner of property propriation are transferred to acquired Separate interests taken, award, substituted for the single which is value of whole. A con- cannot exceed the parts more for interests ought required pay demner not be if one than the land would be worth owned acquired person. *13 determining of each ascertained The value interest is the value among whole, apportioned he may land as and as the may appear interests respective several as their owners power jurisdiction equitable its district court in exercise of Comm., Bank v. State Land deem may proper. (Federal supra.) and remand this case to the
I judgment would reverse the in one trial of all appeals with the proceed court with directions to landowner, the owner the leasehold interest case in which the one jury evidence to to de- their may present the Authority with value of respect award termine the remaining. if to the land damages, any, the land taken and dissent. with the Wertz, J., concurs foregoing 40,336 No.
Virginia Robinson, Appellee. Appellant, Gould, Chet 405)
(309 P. 2d Opinion April 6, filed Nelson, Wichita, argued cause, H. Kahrs, Robert and W. A. H. Julian
Zimmerman, Kelly, Wichita, and Patríele F. all of were with him on the briefs appellant. Weiskirch, Wichita, argued A. cause, D. Holly, Manford Wichita, appellee. was with him on the briefs for the