(Syllabus.)
EMINENT DOMAIN — Judgment against condemnor for difference between award of commissioners deposited in court and verdict of jury.
Where the condemnor deposited in court amount of commissioners' award and having demanded a jury trial, a verdict increasing the award was rendered, the judgment against the condemnor should be the difference between the award of commissioners and the verdict of the jury.
RILEY, J.
The city of Stillwater appeals from a judgment in the amount of $1,500, based on a jury's verdict fixing the value of land condemned by the city for airport purposes.
Commissioners appointed appraised the entire interests condemned, in the amount of $20,000 and apportioned the following amounts:
A.J. Thomas, owner of the fee title ________________ $18,152.32
The Federal Land Bank of Wichita, mortgagee _________ 1,347.68
Fannie Thomas Newman, tenant ________________________ 250.00
Claud Newman, tenant ________________________________ 250.00 --------- Total $20,000.00
The total amount was paid into court. The city entered into possession of the land and the fund of $20,000 was disbursed according to interests appraised. The city and A.J. Thomas demanded a jury trial upon the amount of the award. Upon trial, the amount of defendants' recovery was fixed by the jury's verdict at $21,000. The amount awarded by the jury's verdict was not apportioned. It was $1,000 more than the appraisal of the commissioners, but the court, by judgment, awarded $1,500 to the interest of A.J. Thomas, owner of the land, omitting from calculation the amount that had been paid to the tenants for their interest.
The judgment should have been limited to the "difference between the award of commissioners and verdict of jury". Grand River Dam Authority v. Jarvis (C.C.A.) 124 F.2d 914; Lewis on Eminent Domain (3d Ed.) 1258.
Reversed, with directions to limit the judgment to $1,000.
GIBSON, C. J., HURST, V. C. J., and WELCH, CORN, DAVISON, and ARNOLD, JJ., concur.