Administrative History: The general concept of an agency such as the Forestry, Fish, and Game Commission began in when the governor appointed the first fish commissioner. In the early s funds from the sale of hunting and fishing licenses and other such permits became the major source of revenue for the agency, which continues to be the case up to the present day.
The Forestry, Fish, and Game Commission was first established in and underwent numerous internal reorganizations, changing numbers of Commission members and how they were appointed, from then through In this year, the commission dropped the forestry part of its name and became the Fish and Game Commission. The duties and responsibilities of the Forestry, Fish, and Game Commission included establishing and maintaining wildlife management areas and state fishing lakes to facilitate public use of fish and wildlife resources; assisting private enterprises in fish and wildlife management where it is in the good interest of fish and wildlife resources; conducting researching to provide a basis for sound fish and game management; and disseminating to the public fish and wildlife resource information that was generated in carrying out these purposes.
The lake is an important factor to be considered in determining whether the State in good faith has maintained the entire property for the intended uses. The maintenance of the lake, however, is not the controlling consideration but is only a part of the big picture. Under the circumstances, we hold that the trial court correctly held that the State of Kansas had not forfeited its title to the land simply because the quantity of water contained in the lake has not been sufficient to completely fill an area of acres.
The quantity of water contained in the lake is bound to vary from year to year depending upon the amount of rainfall and any other available sources of water in the area. As noted above, however, the trial court, instead of restricting its decision to a partial summary judgment on the single issue presented, found that all other issues in the case were moot and that judgment should be rendered in favor of the defendants and against the plaintiffs "on their cause of action.
The final summary judgment rendered was erroneous because it was prematurely granted and denied to the parties the opportunity to complete their discovery and present evidence on the ultimate factual issue presented in the case: Whether the state has in good faith used and maintained the premises for the intended purposes.
In Lawrence v. Deemy, Kan. Although there was apparently some evidence presented to the trial court at the informal discovery conference that improvements had been made on the land and that the lake had contained water intermittently down through the years and that various sums of money have been spent on the property, such evidence has not been included in the record on appeal and the parties have not been furnished a full opportunity to complete their discovery and develop evidence to be presented on the primary issue in the case, set forth above, or on other issues raised by the parties.
We have no hesitancy in holding that final summary judgment in the case was prematurely granted and that the case must be remanded to the trial court for further proceedings.
The judgment of the district court is affirmed in part and reversed in part and remanded for further proceedings in accordance with the views expressed in this opinion. Kinney v. Opinion filed December 6, Involved in this case are the fifth and sixth clauses of the deed, which provided as follows: "It is understood by the parties hereto that this conveyance constitutes a donation of the above property for state park purposes within the meaning of Chapter and Chapter of the Special Session Laws of That whenever any person donates or has donated real estate to the state of Kansas for use as a state park upon which real-estate taxes have been levied and assessed and upon which penalties and charges have accrued, the board of county commissioners of the county in which such real estate is situated are hereby authorized and directed to remit and cancel all such taxes, penalties and charges.
On December 13, , the trial court filed its memorandum decision in which it made the following findings of fact: "1. Plaintiffs allege in their petition they are the surviving heirs of the stockholders of Kinney Land and Cattle Co. On February 8, , Kinney Land and Cattle Company executed and delivered to defendants a general warranty deed conveying, for consideration, the aforementioned property to defendant as a donation for a public forestry, fish and game preserve and recreational state park and in so using the said premises a lake of at least acres is to be constructed thereon, within the meaning of Chapter and Chapter of the Special Session Laws of The aforementioned general warranty deed was recorded in the office of the Finney County Register of Deeds in book at page , on the 22nd day of March, A dam of 2, feet in length and 43 feet in height, with a capacity to create a lake of acres was built on the aforementioned property by the United States Civilian Conservation Corps on behalf of the defendant in The Finney County State Park has been subject to improvements provided by or for the defendant, Kansas Fish and Game Commission, said improvements including the planting of trees, the building of fences, the maintenance of the lake's dam and road improvements.
As to the years and dates when said improvements were made same are in controversy but that said improvements have, in fact, [been] made is uncontroverted. It is further uncontroverted that the Finney County State Lake has contained water in the area upon which the dam was constructed and that intermittently between and the lake has contained water or has been dry but has never reached the acre minimum as set forth in the deed.
And, furthermore, since if any water has accumulated in the area behind the dam it has been minimal and has been for very limited time frames. Although controverted by the plaintiffs it must be concluded by the Court that there is no controverted fact that the biennial reports, Fish and Game Commission, to present reflect that there has been a Finney County State Park utilized as a public forestry, fish and game preserve and recreational park.
The clause of reversion is clear on its face; that is, the premises land conveyed are to be used as a public forestry, fish and game preserve and recreational state park.
There is no ambiguity whatsoever as to the use of the premises. The only condition in conveying the premises is that a lake of at least acres is to be constructed thereon. The evidence on the uncontroverted facts is clear; that is, that a lake of at least acres was, in fact, constructed upon the premises. There is nothing contained in the clause of reversion which says that the lake of acres must be maintained.
Only that the premises which were conveyed for a public forestry, fish and game preserve and recreational state park be maintained. This allegation by the plaintiffs is without merit in a careful review of the clause of reversion. The Court finds that there is no requirement upon the defendants to make sure that there is water of at least acres behind the dam to constitute a lake.
The only requirement that exists upon the defendants is that the lake be constructed and that the rest of the property be maintained with the integrity for which it was conveyed. In Bailey v. City of Topeka, 97 Kan.
A mere surmise or belief on the part of the trial court, no matter how reasonable, that a party cannot prevail upon a trial will not warrant a summary judgment if there remains a dispute as to a material fact which is not clearly shown to be sham, frivolous, or so unsubstantial that it would be futile to try the case Knowles v.
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