dissenting: In my opinion the court has placed undue emphasis upon the report of the appraisers and has failed to give proper consideration to the petition in the condemnation action. The petition is the jurisdictional instrument upon which a condemnation proceeding is conducted. What the court has actually done is to give the condemning authority rights it did not acquire by the original condemnation proceedings.
At the outset it is conceded the defendant (Kansas City Power and Light Company — appellee) had statutory authority to acquire by condemnation a right to construct underground transmission lines encased in proper insulation or conduit to transmit electricity across the plaintiffs’ land in accordance with the best practices in the industry. On the facts in this case, however, the question is whether they acquired such right.
The court’s decision is based upon the proposition that in eminent domain proceedings the report of the appraisers becomes the evidence and the only evidence of the extent of the easement taken and the extent of its use. The court further holds the extent of an easement taken in condemnation proceedings and the extent of its use are to be determined as a matter of law from the language used in the appraisers’ report. In support thereof the court cites Sutton v. Frazier, 183 Kan. 33, 325 P. 2d 338; and Roberts v. Upper Verdigris Watershed, 193 Kan. 151, 392 P. 2d 914, which followed the Sutton case.
The situation there presented is different from the one with which the court is here confronted. In Sutton the question was whether the condemning authority (the Sunflower Improvement District) acquired the fee title to property under a statute authorizing it to construct and operate a sewage disposal plant, and it was *531held the minerals underlying the land condemned were not acquired by the eminent domain proceeding — no authority having been granted by the empowering statute to do so, and the report of the appraisers did not purport to cover the minerals underlying the land.
In the Roberts case an easement was taken for the purpose of impounding waters, both permanent storage and temporary detention. Occasionally the entire property within the easement would be covered with flood waters, but when it was not covered with such flood waters, the landowner was permitted to use the portion of the land within the easement which was not inundated with water. The landowner contended and presented his evidence to the jury on the ground that the condemning authority would make full use of a permanent easement covering the sixty acres condemned and damages to the remaining acreage. The condemning authority contended it was taking only a restricted use of the land condemned, thereby seeking to avoid the payment of compensation and damages based on the full use of a permanent easement.
In the instant case the situation is the reverse of Roberts. The condemning authority has already acquired what rights it may have by an eminent domain proceeding, and it now contends it has the unlimited use of its right-of-way to construct underground electrical transmission lines. The question is whether this is more than it has acquired and paid for in the eminent domain proceedings.
The problem here confronting the court is one frequently encountered in condemnation matters. That is, when the condemning authority is in the process of acquiring its rights to property, it seeks to pay as little as possible for the rights acquired and plays down the extent of the damages the landowner may suffer, both present and future. On the other hand, after the condemning authority has acquired its rights in the property it asserts full rights and unlimited uses, as in the instant case. This matter has been the subject of much litigation in the courts of this country.
In all condemnation proceedings the petition is the jurisdictional instrument upon which the condemnation matter proceeds. It follows that the appraisers’ report must be considered in connection with the petition pursuant to which the appraisers acted and received their instructions.
The purpose of the easement which the defendant acquired in its 1956 condemnation action was to permit the construction of a 161,000 volt electric transmission line or lines, and not to acquire *532an easement for any underground electrical conduits. It is clear that any ambiguity in the scope of the easement taken in the 1956 condemnation action must be resolved against the defendant power company. An easement taken by condemnation cannot be extended by implication or intendment. (State v. Armell, 8 Kan. 288; Mercantile Co. v. O. H. & G. Rld. Co., 56 Kan. 174, 42 Pac. 712; and Sutton v. Frazier, supra.)
The caption of the 1956 condemnation action clearly showed that an easement was sought to be taken only for the construction of electrical transmission lines and distribution lines above ground. The caption of the petition filed by the power company described the proceeding as follows:
“In the matter of the Application of Kansas City Power & Light Company, a corporation, for exercise of the right of eminent domain and for the appointment of appraisers to appraise and assess damages by reason of the Condemnation of a right-of-way over certain real estate as herein described.” (Emphasis added.)
Under the general condemnation statute in force in 1956 (G. S. 1949 [now K. S. A.] 26-101) any corporation having the power of eminent domain which desired “to acquire land for a lawful purpose” was required to present to the district court a petition “setting forth the purpose for which the land is sought to be acquired.”
In accordance with this requirement, the defendant power company set forth the purpose for which it sought to acquire the easement over the plaintiffs’ land, in paragraph 4 of its petition in the 1956 condemnation action, as follows:
“Petitioner desires to exercise the right of eminent domain . . . for the purpose of constructing, operating and maintaining said transmission line or lines as heretofore described, to acquire by condemnation, an easement or right-of-way over, under, along and across each of the hereinafter described tracts or parcels of land, for the purpose of transacting and conducting its said business, as aforesaid.” (Emphasis added.)
The defendant power company had specifically described the said transmission line or lines for which it sought to acquire an easement in paragraph 3 of its petition, wherein it stated:
“Petitioner further states that it desires to construct, operate and maintain a 161 Kv transmission line or lines, together with necessary distribution lines, extending from Substation No. 101 ... to Petitioner’s new Substation No. 91 . . . along the route as more definitely set out on the map hereto attached marked Exhibit I and made a part hereof by reference, . . .”
The map referred to in paragraph 3, and attached to the petition as Exhibit I, was captioned:
*533“161 KV. TRANSMISSION LINE — INDEX MAP SUB 101 TO SUB 91 TO SUB 108”
The foregoing specifically shows that the defendant power company intended to condemn an easement for the purpose of constructing a 161,000 volt transmission line or lines, together with necessary distribution lines between two of its substations.
The court consistently emphasizes the expression “over, under, along and across,” as used above in the statement of purpose in the petition, but fails to give due consideration to paragraph 7 appearing in the petition, which reads:
“In acquiring said right of way easements for the construction, operation and maintenance of its towers, poles, wires and other facilities for said transmission and distribution lines, in, through, under, and across said tracts and parcels of land described in the preceding paragraph, the rights that the petitioner may exercise and the rights reserved to the owners, tenants, lienholders and easement holders are as follows, to-wit:
“Petitioner, its successors and assigns, shall have the right of ingress and egress to and from said transmission and distribution line right-of-way to survey, erect, construct, maintain, inspect, patrol, rebuild and repair said lines, together with the right to replace, renew and relocate upon, across, over, under or along said right-of-way steel towers, poles, irires, anchors and appurtenances thereto and the right to remove at any time any or all of said installations or appurtenances, and petitioner may erect, maintain and use gates in all fences which cross or which shall hereafter cross the route of said transmission and distribution lines, and may trim and/or cut and clear away any trees, limbs and brush upon or adjacent to said right-of-way whenever in its judgment the same will interfere with or endanger the constmction, operation or maintenance of said lines. In exercising its rights of ingress and egress, petitioner shall, whenever practicable, use existing roads or lanes and shall repair any damage by its use thereof, but if petitioner finds it impractical to use existing roads or lanes during construction or for maintenance or repair of its transmission and distribution lines, petitioner shall have the right to come upon said right-of-way through adjoining lands of the owners, tenants, lienholders and easement holders, petitioner to repair any damage by its use thereof. If the petitioner shall cut or remove trees under the rights hereby taken, if such trees shall be valuable for either timber or wood, they shall continue to be the property of the owners, tenants, lienholders and easement holders, but all tops, limbs and brush shall be burned or removed by the petitioner.
“The owners, tenants, lienholders and ■ easement holders, their heirs or assigns, may cultivate and fully use and enjoy the land within said easement or right-of-way, provided the same shall not be used in any way that will interfere with or endanger the construction, operation or maintenance of said transmission and distribution lines and provided that no permanent structures shall be erected or maintained under said transmission or distribution lines.
“Petitioner, its successors or assigns, agrees to pay for any reasonable permanent damage caused to land, growing crops, fences, livestock, machinery, or *534other personal property of the owners, tenants, lienholders and easement holders, from the construction, operation or maintenance of said transmission lines.” (Emphasis added.)
The above portions of paragraph 7 emphasized indicate that the initial clause in paragraph 7 referred only to “towers, poles, wires and other facilities.” The next clause in the paragraph referred only to “steel towers, poles, wires, anchors and appurtenances thereto.” There is not the slightest indication anywhere in this paragraph that the petitioner intended to acquire any rights for underground conduits, cables, ducts, mains, pipes, tubes or any similar terms descriptive of any underground transmission facilities.
The intermittent use of the preposition “under” at scattered places in the petition is in itself ambiguous in view of the fact that the erection of steel towers requires a concrete foundation extending beneath the surface of the soil.
The next clause in paragraph 7 refers to the right to trim, cut and clear away any trees, limbs and brush which might interfere with the construction, operation or maintenance of “said lines.” Obviously, this pertains only to overhead transmission lines.
There is no mention in the petition of any right to remove roots, stumps, rocks, topsoil, overburden, drainage pipes, culverts, manholes, streets, curbs, retaining walls, or any other possible surface or subsurface obstructions. Likewise, there is no provision giving the defendant power company the right to excavate, dig any ditches or trenches, do any grading, make any cuts or fills, etc.
An important subparagraph in paragraph 7 is the one reserving certain rights to the owners of the tracts across which the power company sought to condemn the easement.
In this paragraph the “said transmission and distribution lines” are the 161,000 volt electrical transmission line or lines, together with necessary distribution lines that are the subject of the petition. When the landowners are told in this subparagraph that they can fully use and enjoy the land within the easement or right-of-way provided that no permanent structures shall be erected or maintained “under said transmission or distribution lines,” they are clearly told in the petition these transmission and distribution lines will be above the surface of the land. On this point it is to be noted there was no limitation or restriction against the erection of a structure over said transmission or distribution lines which would indicate that the petition did not contemplate the construction of an *535underground conduit for the transmission of electricity. The petition clearly contemplated only the construction of overhead transmission or distribution lines under which the owners’ right to erect structures was prohibited.
If the defendant power company intended to exercise its authority to condemn an easement for the underground transmission of electricity, the limitations upon the owners’ rights would have been much broader. For example, there was no limitation upon the owners’ right to place streets, driveways, curbs or sidewalks across the surface of said easement, or to run sewers, water lines, gas lines, electrical conduits or other underground pipes or tunnels across the right-of-way condemned. None of the surface or subsurface facilities enumerated would be prohibited by the restriction against erecting structures under said transmission or distribution lines. Nevertheless, once the defendant power company constructed an underground system of electrical transmission lines, as it did in 1966, discussed infra, there was no way that anyone could run any such utility or service lines through the concrete conduit forming a barricade.
In my opinion the condemnation petition filed in 1956 by the defendant power company was insufficient to acquire the right to construct underground electrical transmission lines as the power company did in 1966 in the right-of-way condemned. Assuming, however, that the word “under” sporadically used in the 1956 condemnation petition purported to grant such right as held by the court, the entire petition as heretofore analyzed is at least ambiguous as to whether such right was acquired. In this situation the petition must be construed against the defendant power company on the basis of the authorities heretofore cited.
Construing the petition then in favor of the landowner, the condemning authority did not allege in its petition that it was taking an easement for the construction of underground electrical transmission or distribution lines. It follows the report of the appraisers, if it be construed to give more than the right to construct, operate and maintain overhead lines, exceeded the authority of the petition and is not controlling on the plaintiffs. The appraisers’ report, however, is not subject to such construction. With respect to the electrical transmission lines the appraisers’ report refers to them “as more particularly described in the petition.”
What are the facts which the court in this case found to be *536immaterial on the issue presented? The court was informed on the argument of this case that the defendant power company laid twelve underground electrical transmission conduit lines in concrete; that these lines were placed side by side in two’s running parallel on the same horizontal plane approximately one foot apart; and that the pairs were stacked vertically on top of each other six high. These conduit lines were then encased in concrete which measured eighteen inches wide and four feet high, making a solid concrete wall across the plaintiffs’ property, the top of which was to be constructed beneath the surface two and one-half feet, thereby making it impossible to install sewer and various utility lines across the easement. It was further related that by negotiation between the contractors the landowners paid $18,005 to have the defendant lower this installation two feet more than had been planned prior to its installation. In the petition herein the plaintiffs request reimbursement of the $18,000 and $100,000 damages for appropriation of an underground easement.
This property is located in Johnson County in a rapidly developing area, and the development of the plaintiffs’ property for urban purposes was seriously jeopardized.
Assuming these facts to be true, were they before the appraisers when the condemnation matter was originally determined, or, if the matter was before a jury to determine just compensation to the landowners, were these facts disclosed so it could properly assess the damages?
If the defendant is permitted to construct an underground concrete wall as heretofore related on the right-of-way condemned, there is nothing which would prevent the defendant from constructing a concrete wall two feet wide commencing twenty feet beneath the surface of the land and extending above the surface in such a way as to constitute a Berlin Wall across the premises in question.
The court in its opinion circumvents the facts by saying “the evidence would have been irrelevant to the issue before us on appeal.” (p. 529.) By this the court means the plaintiffs did not raise on appeal an issue as to the reasonable use of the easement condemned. The court fully recognizes authorities which formulate the rule that the use made of an easement must not only be germane to the purposes for which the easement was acquired, but that it must be a reasonable use as well. Therefore, in the opinion of the *537court, the decision of the trial court in the instant case might well have been reversed had the plaintiffs raised this issue.
Actually, the authorities cited by the court for this proposition do not apply to the facts here. In my opinion they do not support the rule espoused by the court. In Aycock v. Houston Lighting & Power Co., 175 S. W. 2d 710 (Tex. 1943), the electric company sought to construct a fence along its right-of-way condemned and keep the landowner off or keep him from using the land on the right-of-way. This was held not only to be unreasonable, but that the power company did not acquire the right to fence the easement condemned. The court said companies possessing the right to condemn private property for a public use cannot do what they please with the land condemned, but that they may do what is reasonably needful to carry out the purpose for which the land is taken.
In Jenkins v. Depoyster, 299 Ky. 500, 186 S. W. 2d 14, the grantee of minerals in land became involved with the owner as to surface rights. The court held the grantee of the minerals by implication of law acquired the right to use so much of the surface as may be reasonably necessary for beneficial and profitable working of the coal mine, including the right of ingress and egress to the extent that it is reasonably necessary for the use of the estate granted. It further held the owner of the servient estate could erect and maintain gates across the passageway to the property provided they are located and erected not to interfere unreasonably with the right of passage.
Here the court is not confronted with an easement created by contract which has been termed a vested expansible easement, wherein the expansion should be limited to what would be considered reasonable in amount or distance. In Waggle v. Peoples Natural Gas Co., 17 Pa. D. & C. 2d 550 (1958), the court held the right in such easement ceased to be transitory when the original installation was completed.
For the rule where a blanket form of easement to erect an electric transmission line by contract is granted, see Jackson Electric &c. Corp. v. Echols, 84 Ga. App. 610, 66 S. E. 2d 770.
In my opinion on the facts in this case there is no distinction between an unreasonable use of the easement acquired by the defendant power company by condemnation and an unauthorized use of the easement. If it was unreasonable to construct an underground concrete barrier along the right-of-way it was unauthorized, *538and on this basis the decision of the trial court should have been reversed.
The basis of my dissent herein, however, is more fundamental. It is based upon the petition filed in the instant case which is the jurisdictional instrument upon which the condemnation proceeding was conducted. As heretofore stated, the petition authorized only the taking of an easement for the construction, operation and maintenance of overhead transmission and distribution lines. The overhead line was constructed, operated and maintained for ten years before the defendant power company began construction of the underground lines here in controversy.
Nowhere in the record is it disclosed that the underground lines installed in the year 1958 were known to be in existence on the right-of-way condemned when the present plaintiffs acquired the property in question, and it cannot be said they were bound by the existence of these underground transmission lines by notice of the original condemnation proceedings on file in the office of the clerk of the district court.
It is time the Kansas Supreme Court spell out with some certainty what is required in a condemnation petition. Other jurisdictions have been confronted by similar situations and require the purposes for which an easement is taken for the transmission of electricity to be specifically described in detail.
For example, in the case of In Matter of Long Island Lighting Co. (Wicks), 272 App. Div. 915, 71 N. Y. S. 2d 12, a property owner challenged the sufficiency of a petition, and the Appellate Division of the Supreme Court of New York reversed an order granting an easement and right-of-way in, over and across lands owned by the plaintiffs, stating:
“. . . Appellant is entitled to know with reasonable certainty from an examination of the petition the height and size of the poles to be installed, their approximate location on the property, the number, location and size of the cross arms, and the extent to which they will be used for the purposes designated in the petition, the extent to which overhead and underground facilities will be employed, and such other information as will permit an accurate admeasurement of damages and control the future use of the property. (Suffolk County Telephone Co. v. Gammon, 113 App. Div. 764; Bell Telephone Co. v. Parker, 187 N.Y. 299.) . . .” (p. 915.)
In Power Co. v. Shackelford, 137 W. Va. 441, 73 S. E. 2d 809, an easement for the construction and operation of an electric transmis*539sion line was condemned, and the award of the commissioners was reversed and set aside, the court saying:
“ ‘In condemnation proceedings where land is sought to be taken, the plaintiff must describe it with accuracy and certainty. See 29 C. J. S., Eminent Domain, § 259, pages 1228 et seq. And this is the purport of subsection 5 of section 8220, supra. We cannot see why the same certainty and accuracy are not essential where an easement rather than the land itself is sought in the proceedings. And the authorities so hold. The reasons for this requirement of certainty and accuracy are not far to seek. They are essential so that both the owner of the easement and the owner of the property subjected to it may know exactly what their rights are with respect to their different interests. And certainty is just as essential in order to determine the value of the interests taken and the damage done by its taking to that portion of the property not subject to the easement. See, C. J. S., Eminent Domain, § 259, pages 1230, et seq.’ . . .” (p. 448.)
In Bell Telephone Co. v. Parker, 187 N. Y. 299, 79 N. E. 1008, the court said:
“I think the description of the property sought to be condemned in this proceeding complies with the requirements of the statute in all respects save one; but that it is not sufficiently specific in stating the extent of the right which the petitioner desires to acquire ‘to trim such trees as may be necessary to protect said line from interference.’ ” (p. 303.)
The landowners of this state and companies authorized to condemn private property to acquire an easement or right-of-way for the transmission of electric power are entitled to a statement of the law from this court as to what shall definitely be stated in a condemnation petition. It should require the petition to state in definite and certain language that which is taken and the uses to which the property taken will be put, both at the time of condemnation and in the future, so that no question may arise, as here, concerning the extent of the condemner’s rights and the rights retained by the landowners in accordance with the authorities cited from other jurisdictions for the reasons stated therein.
In the instant case the defendant shortly after acquiring its easement by condemnation erected overhead transmission and distribution lines on high poles so that the lines were far above the surface of the land. This was pursuant to the stated purpose for which it acquired the easement at the time of condemnation. This is consistent with my construction of the petition herein.
It must be conceded the defendant herein, having the power of eminent domain, has the right to condemn property for future uses as well as uses contemplated at the time of condemnation, but if *540such future uses are to go beyond the present needs of the condemning authority to construct, operate and maintain its transmission and distribution lines, such future use to which the property will be put must also be specifically stated and described in the condemnation petition.
It is respectfully submitted the judgment of the lower court should be reversed.
Fromme, J., joins in the foregoing dissent.