condemnation/marion pestinger 2/7/1975DEAN BOYER. P. E.
'CITY ENGINEER
BUILDING OFFICIAL
w/tEtrAcrtrh
CITY -COUNTY BUILDING
800 WEST ASN STREET
P.O. BOK 746
SALINA. KANSAS 67401
February 7, 1975
D. W. BASSETT
ABBY. CITY ENGINEER
RON TREMBLAY
DEPUTY BUILDING OFFICIAL
Corps of Engineers
Federal Office Building
601 East Twelfth Street
Kansas City, Missouri 64106
Attention: Mr. Dean Schuster
Dear Sir:
We are enclosing for your review a copy of the legal
proceedings regarding the condemnation of property acquired
from Mr. Marion Pestinger.
We have given this information to our City Attorney
to review and advise us of our responsibilities. I contend
that the City is not responsible for maintenance of private
entrances unless it is specifically spelled out in the
court proceedings.
Very truly yours,
an Boyer
DB:MKP
ENC: (1)
MEMBER . . KANSAS LEAGUE OF MUNICIPALITIES - NATIONAL LEAGUE OF CITIES
IN THE DISTRICT COURT OF SALINE COUNTY, KANSAS
IN THE MATTER OF THE APPLICATION OF THE
CITY OF SALIVA, KANSAS, FOR THE APPOINTMENT
OF COMMISSIONERS IN THE CONDEMNATION OF
PROPERTY FOR THE PURPOSE OF PROVIDING
NECESSARY RIGHT-OF-WAY FOR THE SALINA FLOOD
CONTROL SYSTEM
MARION W. PESTINGER and MARIAN M. PESTINGER,
vs.
CITY OF SALINA, KANSAS,
Appellantsi
Appellee
Ej
)
No.oZo2�l�' kT
«� NOTICE OF APPEAL FROM AWARD
53i
RWM n •...
TO THE CITY OF SALINA, KANSAS:
�I
WHEREAS, Marion W. Pestinger and Marian M. Pestinger
4 are and were the owners of the following described real property:
A tract of land located in the Northwest Quarter
-'.,C (NW/4) of Section One (1), Township Fourteen (14)
South, Range Three (3) West of the Sixth Principal
Meridian, in Saline County, Kansas, described as
follows: Beginning at a point Twelve Hundred
Seventy (1270) feet East, Three Hundred Fifteen
and seven tenths (315.7) feet North, and Two
Hundred Twenty-five (225) feet West of the South-
west corner of said Northwest Quarter, said point
being Two Hundred and Twenty-five (225) feet West
of the Northeast corner of College Court Addition,
thence West and parallel with the South line of A -
said Quarter Section Two Hundred Twenty-five r!
(225) feet, thence North parallel with the Eastk-e-'
line of said Quarter Section One Hundred Ninety
(190) feet, thence East and parallel with the
South line of said quarter section Two Hundred 1�.
Twenty-five (225) feet, thence South and parallel
with the East line of said quarter Section One
Hundred Ninety (190) feet to the place of begin-
ning; and,
Also,
A tract of land located in the•Northwest Quarter
(NW/4) of Section One (1), Township Fourteen (14)
South, Range Three (3) Test of the Sixth Principal
Meridian, in Saline County, Kansas, described as
follows: Beginning at a point Twelve hundred
Seventy (1270) feet East and Five Hundred Thirty-
five and seven tenths (535.7) feet North of the
Southwest corner of said Northwest Quarter, said
point being Two Hundred Twenty (220) feet North
of the Northeast cornor of College Court Addition,
thence West and parallel with the South line of
said Quarter Section, Two hundred and Three (203)
feet, thence North parallel with the East line of
said Quarter Section Two ffundred (200) feet, thence
East and parallel with the South line of said
quarter section Two Hundred and Throe (203) fe«t,
thence South and Parallel with the East lino of
said quarter section Two flundred (200) foot to
the placo of bni inning; and
y _
r Ii
Also,
A tract of land located in the: ,,Northwest Quarter
(NW1!4) of Section One (1) in Township Fourteen
(14) -,South, Range,Three (3) 'lest of the Sixth
Principal Meridian in Saline County, Kansas,
described as follows: Beginning at a point Twelve
Hundred Seventy (1270) feet East and Three Hundred
Fifteen and seven -tenths (315.7) feet North of the
Southwest Corner of said Northwest Quarter,.being
the Northeast .corner of College Court Addition,
thence West and parallel with the South line of
said Quarter, Two Hundred Twenty-five (225) feet,
thence North parallel with the East line One
Hundred Ninety (190) feet to a point, thence East
and parallel with the North line of said Quarter
Two Hundred Twenty-five (225) feet, thence South
and parallel with the East line of said Quarter
Section One Hundred Ninety (190) feet to the
place -of beginning;
and,
WF.EREAS, the City of 'Salina seeks to condemn the
following described portions of that land and rights of owner-
ship `therein:
V 1. Right-of-way for levee and road ramp over
levee. (a) Beginning at a point 1270 feet
east of,and 535.7 feet north of the southwest
corner of the Northwest Quarter of said Section
1, thence west parallel with the south line of
said quarter 203 feet, thence north 60.8 feet,
thence east to a point 1250 feet east of and
596 feet north of the southwest corner of the
Northwest Quarter of said Section 1, thence
northerly to a point 1260 feet east of and 735.7-
feet
35.7feet north of the southwest corner of .the North-
west Quarter of said Section 19 thence east 10
feet, thence south to point of beginning and
containing 0.33 acres, more or less. (b) Be-
ginning at a point 1270 feet east of and 315.7
feet north of the southwest corner of the North-
west Quarter of said Section 1, thence :lest 10
feet, thence northerly to a point 445.7 feet
north of and 1255 feet east of the southwest
corner of the Northwest Quarter of said Section
1, thence east 15 feet, thence south to point
of beginning and -containing 0.04 acres, more
or less.
II 2. Entrance ramp easement, 3'each, 20 feet by
20 feet at location of existing entrances off
i of Fifth Street and adjacent to right-of-way
described in 1 (a) and (b) above. North entrance
adjacent to north property line of tract 1 (a)
above and south entranceadjacent and north of
the south property line of tract 1 (b) above,
and middle entrance adjacent and south of the
property line described in 1 (b) above;
and,
WIiSRFAS, as a consequenco of the aforesaid condemna-
tion proceodings inntitutod by tlio City of Salina in the above
entitled actions commissionors were duly appointed and in
compliance with the law proceeded to cause notice to be publichod
2 -
and did :thereafter assemble for the purpose of making a determina-�
tion as to the value of the lands taken and other damages; and i
WHEREAS, after such, determination, the commissioners
so appointed did duly file their report and did make an award
for the benefit of Marion W. Pestinger and Marian M. Pestinger
aforesaid; and
WHEREAS, Ma -ion W. Pestinger and Marian M. Pestinger
deem themselves aggrieved by the decision and award of said
commissioners as a•consequence of the taking of the rights of
ownership aforesaid; and
SO$ NOW$ THEREFORE, you are hereby notified that
Marion W. Pestinger and Marian M. Pestinger were and are the
owners of all of the lands aforesaid; that they deem themselves
aggrieved by the award of damages as aforesaid, and do intend
to and do hereby appeal unto the District Court of Saline County,
Kansas, from the award of damages so made and from the report of
said commissioners duly filed as aforesaid, the same having been
duly filed within.thirty (30) days of the date on which this
appeal is filed.
Dated this yW)>+ day of °`"""'�"2`"-�/9
1959.
CLARK, 117 XNILLARD
By .
Their Attorneys
Vs* No. 22018-G
( Tract IV AA )
The City of Salina, Kansas, , • ,� .,�_ '
Condemnation for Flood Control System.- a;
: 3' ° i 1 C.
REPORT OF REFEREES
Pursuant to the order of reference made in thisaction
the undersigned referees respectfully report. On February-3,
1960., .at the courthouse in Salina, Saline County, Kansas,
the above entitled case came on for trial. The claimants,
Marion W. Pestinger and Marian M. Pestinger appearing by
their attorneys, C. L. Clark, James P. Mize, and Tom Lillard, Jr.
The City of Salina, Kansas, appears by its attorney, Howard
Engleman. The parties respectively waive opening statements
and proceed to introduce their evidence and rest. No'oral
arguments are made.Documentary evidence is received and con:
sidered. The referees viewed the land in question., -.,,,,Testimony
was taken by the court reporter.
rtaN3 I9 C
FINDINGS OF FACTJ�-•
From the evidence introduced the referees find as follows;
(1) The policies, purposes, extent and obligations of
the City of Salina, Kansas, in appropriating the land are
set forth in the petition filed in this case, No. 22018-G,
in the District Court of Saline County, Kansas.
(2) The property appropriated consists of a right of
way for levee and road ramp over levee containing 0.57
acres, more or less, more specifically described in IV AA
as No. 1, subsections A. and B., and in addition thereto
3 entrance ramp easements 20 feet by 20 feet each, more
specifically described in Section 2 of said Tract IV AA.
(3) The owners of the property in question are Marion
W. Pestinger and Marian.M. Pestinger.
(4) The property in question when put to its best and
most advantageous use is for suburban development.
(5) The value of the entire tract before the taking on
June 18, 1959, was $15,500.00. The value of the remaining
property after the taking, herein before described, was
$78560. The total damages to the land are $7,940.
FEP 0
CONCLUSIONS OF LAW
142:
The policies and obligations of the city of Salinas
Kansas, as above found and set forth in the petition filed
in this action, No. 22018-G, with respect to right of way
easements and uses'of the property, are hereby ratified-,
and defined. That Marion W Pestinger and Marian M. Pestinger
should have and recover judgment for the sum of $79940.06 and
.the costs of this actions heretofore stipulated between the
parties. I
M
IN THE DISTRICT COURT OF SALIIIE COUNTY, KAMSAS
IN THZ MITT -;'OF 7-M APPLICATION OF Ti:E
CITY OC SALLA. M:SAS, FJR TAL APPAINr-
ZZUT OF C'):I':T_S5I) i nS IN VE COUDI.2 rIATION
OF PROPEMY FOR TAE PURPO519 OF PROVIDIi.'G
NECESSARY RIG11TS-JF-WAY FOR TRE SALI+A
FLOOD COMOL SYSTEM
HARION W. P3STIIY;BiR and MARIAN H. PESTING R"
-Ve-
i.
" CITY OF SALIM, KANSAS.
07 !'
REPORT OF rXFEREES
1;
Appellants. )
No. 22018-G
.4 ) F.4
Appellee—,,,,�
124 2 4 tSSO
C7„:f
SUPPLENEIMU"y FINDING OF FACT
..,,a (G) The aforesaid damages should be apportioned as follows:
F 40 Acres of land taken . . . . . . . . $ 400.00.
t:
Severance damages ... . . . . . . . . . $7,900.00
BaArm OF RLFExEzs:
Member
Chairman—�
F'
STATE OF KANSAS )
)u'sa
COUNTY OF SALINE )
IN THE DISTRICT COURT OF SAID COUNTY AND STATE
IN THE MATTER OF THE•CONDEMRATION
) Base Case No. 21738
SALIVA FLOOD C0117ROL SYSTEM ) Appeals.B, F, G, H, S, T; and,
Base Case No. 22018
Appeals Dtt',�.! G,, H,=S;•-J��
X. and L. k I L_ � %
NOV 2 7 1959
STIPULATION 7
The.City of Sa!Lnnt appears in the above entitled procead'ings by
Rudolph Barta, City Attorney and Howard G. Englenan, Special Attorney for
the City, and the appealing property owners in the appeals identified in
the caption hereof, appear by C. L. Clark of the law firm of Clark, Mize
and Lillard, their attorneys and stipulate:
That the litigants consent to the court entering a general order
of reference in said proceedings under and pursuant to Section 60-2922 to
2924 inclusive, and that the court proceed to appoint three (3) referees
to determine questions of fact. to be resolved in said proceedings and such
other and further orders and determinations that may be specifically
authorized by law. That .in the making of said appointment, the court should
appoint any three (3) referees that the litigants might agree upon.
That the compensation of the referees shall be at the rate of
$100.00 pet day actually expended in the performance of their duty, plus*
actual expenses, that such costs be charged one-half to the City and the
other one-half shall be equitably apportioned and charged as costs against
the appealing property owners.
Dated at Salina, Kansas, this 12th day of November, 1959.
CITY OF SALIVA
By I��b
Its Attorneys
CLARK, MIZE AI1D LILLARD
204 West �ron
Salina, j ansas/
--
Attorneys for Appealin.- Property
owners, In the Identified Appeals
Now on this .12th day of November, 1959, the stipulation consenting
to referscee tiie above entitled „causes to referees is presented to the
court.
The court after being fully advised in the premises, finds that
three referees, nan;ely L, A, f;c;:ally, S1, V. Urban, and ohn .H. Lehman
should be and they are hereby appointed to hear and deter-
mine the facts in the above entitled proceedings, and that they enter such
other and further orders and determination& as authorized by law, ,and that
the epmpensation of said referees be, and it is hereby taxed at $100.00 per
expended day each, plus their actual expenses, and that one-half of the
cost of such sum shall be taxed as costa to the City of Salina, and the
remainder of such costs shall be equitably apportioned and charged as costs
against the appealing property owners in the captioned appeals.
i
Submitted:
IT IS 50 ORDCRZD:
CLAM, HIS AND LILLMRD
204 i;•est Iran
Salina,, K• rjas
BY ---
Attorneys for Apl.aaliug Property
ot+ners
CITY OF S:iLINA
�3 M
• STATE OY KA::SAS )
ITTM'y 1 .
i Ja..er �'..
COMMi Or SALt:_,g)
N0v9 1959
Iit Tilt DISTRICT COIC:T OF
SAID COU',. -TY
MD
STATE
civ
it? TIL MATT= OF11a CONDDM1TION
•
)
Base -Case
No.
21738
SALINA FLOOD CJ. TfiriL SYSTEM
)
Appeals B,
F,
G, Il, S, Tt aad.
Base Case
No.
2201$
Appeals D,
B,
r, coji, I, J!
K and L.
ar,Dr•.R
Now on this .12th day of November, 1959, the stipulation consenting
to referscee tiie above entitled „causes to referees is presented to the
court.
The court after being fully advised in the premises, finds that
three referees, nan;ely L, A, f;c;:ally, S1, V. Urban, and ohn .H. Lehman
should be and they are hereby appointed to hear and deter-
mine the facts in the above entitled proceedings, and that they enter such
other and further orders and determination& as authorized by law, ,and that
the epmpensation of said referees be, and it is hereby taxed at $100.00 per
expended day each, plus their actual expenses, and that one-half of the
cost of such sum shall be taxed as costa to the City of Salina, and the
remainder of such costs shall be equitably apportioned and charged as costs
against the appealing property owners in the captioned appeals.
i
Submitted:
IT IS 50 ORDCRZD:
CLAM, HIS AND LILLMRD
204 i;•est Iran
Salina,, K• rjas
BY ---
Attorneys for Apl.aaliug Property
ot+ners
CITY OF S:iLINA
6
STATZ Cr I'l.n:AS )
CGLi-V C; CALI:M )
IM S:'I3. Disv.T:.Y cc= w CHID COi1= AIM *TATE
lase Casa No. 21733
S.U.Ibt 7=:) CO:. .:J%L SY. V:I ) Appeals Do F. C, Fl, S, T; ando
J � �� ;"+�4 i \t $i! 6C^ w'.�'.iF�iO • 2 (i� t�
Appeals Do So r, Go no is .io
fi and L.
iiF^ 1 ri 1958
�.,;: ._ t, W. A F'c'•�+Iy and John H.H. LLehaan
•sly 3j71'oi:t^ : to er ^j -to 'hr�r cad iietcr.nc ttiu faces in all the
eaptioced ap,cals, c.3ch do colvardy c: car to Vicel and faithfully hsar .end
n"•.^.liac icle.n.t .a is .n the captioze:D prm;cc(Irnvs, an Ctl t::.n,:n ;asst and
trta reports t:tiersia, rcaorJln3 to trio Lest o' thoir uon3urrtaadinG.,
Dated at Salina, rAnsas, thin 15 day of ✓ w_ , 1459.
W. W. W-6 cs i
L.A. M,-NauY L4')
Ae°c�ae:.
Su3srrib ad avid sWoru to by enr_Fi V. 11. Urbn a, L. A. Ii '•?a2iy.
annu John N.. Lh—`nt:�ia ISS` d:3y or
-
#'34Fyr' � ;+xY _ - - QctC+I T' Test t.
Glen- Of c':e ;:ietriet court of
Snllne Countyi l:ancas
a ' .'Tip " .�: ♦ .:•1 •' /.fi r... �t t.. _ : Y.• J�.._. ...�:a%DncD kin
JHE CITY 4F SALINA, KANSAS
PURCHASE ORDER Cm CLERK'? COPY—TO e1 MAILED WITH CHECK
CHECK NO.
DATE PAID Feb 25.9 yto
'—
DATE Feb Z v lv)o
FUND CHARGE -
Cll:rk CS Lta Ustrict Const:�•
c ^ , r
CODE AMOUNT
TO:
rAwt
L •- !
Ship To CITY OF SALINA, KANSAS
ATTENTION or % DEPARTMENT
QUANTITY
DESCRIPTION
UNIT PRICE
AMOUNT
Flaac. Coa=l Proljcct st Casa No. 22018.0
Tract IOA4
Prirdl al
T,9.:e.c
8,t,5s.Tb
IN THE DISTRICT COURT OF SALINE COUNTY, KANSAS
IN THE MATTER OF THE APPLICATION OF THE
CITY OF SALINA, KANSAS, FOR .THE APPOINT-
MENT OF CO*11SSIONERS IN THE CONDEMNATION
OF PROPERTY FOR THE PURPOSE OF PROVIDING
NECESSARY RIGHTS-OF-WAY FOR`THE'SALINA
FLOOD CONTROL SYSTEM
MARION W. PESTINGER and MARIAN M. PESTINGER,
i'f1.�.. w.:., T. E C . M1.. -+-•F..✓ � Yl.. n✓ I�..,a.r �.J '
-Vs- r'
CITY OF_SALINA, KANSAS,
Appellants, )
)
No. 22018-G
Y .ca'L I V A A
Appellee. )
JOURNAL ENTRY nn r{'
�.l�.-.l►.ucy— r.
c e�=
NOW, on this cP-,a day of February, 1960, the Report of the Refereesl
is presented to the court herein, and upon motion duly made by the appellants
for judgment, and after being duly advised in the premises, the court finds:
That the Report of the Referees is in all respects confirmed and
approved, the same being incorporated herein by reference, as the findings and
10
conclusions of the court herein. If
That Marion W. Pestinger and Marian M. Pestinger are entitled to
have and receive, as damages, the sum of $7,940.00 as of January 23, 1959,1
the date of the taking herein, with interest thereon at the rate of 67 per ann
um
from said date until the payment of said judgment.
THEREFORE, BE IT CONSIDERED, ORDERED, AND ADJUDGED, That Marion W. j
Pestinger and Marian M. Pestinger are hereby granted judgment against The City
of Salina, in the above entitled proceedings, in the sum of $7,940.00 , with
interest thereon at the rate of 67 per annum from January 23, 1959, until paid
and for the costs of this action and one-half (1/e) of the fees and expenses
of the Referees, attributable to this particular proceeding.
CLARK, MIZE AND LILLARD
By
Attorneys or Appellants
THE CITY OF SALINA, KANSAS
By
Its At
IN THE DISTRICT COURT OF SALINE COUNTY, KANSAS
IN THE MATTER OF THE APPLICATION OF THE
CITY OF SALINA, KANSAS, FOR THE APPOINT-
MENT OF COMMISSIONERS IN THE CONDEMNATIG
OF PROPERTY FOR THE PURPOSE OF PROVIDING
NECESSARY RIGHTS-OF-WAY FOR THE SALINA
FLOOD CONTROL SYSTEM
MARION W. PESTINGER and MARIAN M. PESTINGER,
-vs-
CITY OF SALINA, KANSAS,
Appellants,)
No. 22018-G
nT-T+7 n
Appellee. )
%' A Q 2 3 19F0
MOTION FOR PERMISSION TO WITHDRAW EXHIBITS
Comes now the appellants, Marion W. Pestinger and Marian M.
Pestinger, and move the .court for authority to withdraw the exhibits submitted
by Appellants in the trial of this case.
CLARK, MIZE AND LILLARD
204 West Iron Avenue
Salina, Kansas
By
Attorneys for Appel ants
O R D E R
. NOW, on this �,Lday
motion comes on to be heard..r The
granted.
IT IS SO ORDERED.
Submitted by:
CLARK, MIZE AND LILLARD
LALBy
Attorneys fur Appellants
Approved by:
II 11. 6//�nglemnn
ACtuliwy tor Appellee
of 971 !mac 6"� , 1960, the above
court finds that the said motion should be
rr .
IN THE DISTRICT COURT OF SALINE COUNTY, KANSAS
I
IN THE MATTER OF THE APPLICATION OF THE )
CITY OF SALINA, KANSAS, FOR THE APPOINT- )
if MENT OF COMMISSIONERS IN THE -CONDEMNATION )
h OF PROPERTY FOR THE PURPOSE OF PROVIDING )
I NECESSARY RIGHTS-OF-WAY FOR THE SALINA )
FLOOD CONTROL SYSTEM )
MARION W. PESTINGER and MARIAN M. PESTINGER,
-vs—
CITY OF SALINA, KANSAS,.
REPORT OF REFEREES
E
Appellants, )
No. 22018-G
)i•.�� -4�-opt. Sar:
Appellee. )
,IAR 2 4 1960
c7�f
SUPPLEMENTARY FINDING OF FACT
(6) The aforesaid damages should be apportioned as follows:
.40 Acres of land taken . . . . . . . . . . $ 400.00
Severance damages . . . . . . . . . . . $7,900.00
BOARD OF REFEREES
Member �J
Chairman
y
n
IN -'THE DISTRICT COURT OF SALINE COUNTY, KANSAS
IN THE MATTER OF THE APPLICATION OF THE )
CITY OF SALINA, KANSAS, FOR THE APPOINT- )
MENT OF COMMISSIONERS IN THE CONDEMNATION )
OF 'PROPERTY FOR THE,PURPOSE OF PROYID.ING )
NECESSARY RIGHTS-OF-WAY FOR THE SALINA )
FLOOD CONTROL SYSTEM )
MARION W. PESTINGER and MARIAN M. PESTINGER, )
Appellants; )
'vs' ) No. 22018-G
CITY OF SALINA, KANSAS,
Appellee
"HN2 ED
:1961
MOTION FOR PERMISSION qA446r 01SIR
TO WITHDRAW EXHIBITS
Come now, Marion W. Pestinger and Marian M. Pestinger, appellants
in the above captioned case, and move the court for an order permitting them
to withdraw the exhibits filed by the appellants herein.
CLARK, MIZE AND LILLARD
Walnut at Seventh
Salina, Kansas. --1
E FAVRM AW
I�I ORDER JUN 221961
Now on this C q day of June, 1961, the Mo'tioiloiisAlr1r To.
Withdraw Exhibits,filed herein by appellants, comes on to be heard. The court
II finds that the same motion should be granted.
IT IS THEREFORE CONSIDERED, ORDERED AND ADJUDGED that the appellants
(I should be permitted to withdraw the exhibits filed by them herein.
I
Judge of t Cistrict Co t