It has also been held that a public utility which has the power of eminent domain is vested with reasonable discretion to determine the amount of land necessary for its lawful corporate purposes, and when such discretion is exercised it will not be disturbed on judicial review unless fraud, bad faith or an abuse of discretion is shown. ( Shelor v. Western Power Gas Co., 202 Kan. 428, 449 P.2d 591.) Other decisions of like import are State Highway Comm. v. Ford, 142 Kan. 383, 46 P.2d 849; Soden v. State Highway Commission, 192 Kan. 241, 387 P.2d 182; Urban Renewal Agency v. Decker, supra; and Reinecker v. Board of Trustees, 198 Kan. 715, 426 P.2d 44. Since fraud and bad faith have been eliminated as issues in the instant case by stipulation at the pretrial conference, the trial court merely observed that this case would be tried, as all other Kansas cases seeking to enjoin condemnation, on the issue whether KPL was guilty of abuse of discretion. KPL had previously requested the trial court to rule upon questions of (1) whether or not a demonstration of compliance with federal and state law is a condition precedent to condemnation, and (2) whether the burden was upon the appellants to prove that KPL could not comply with federal or state law or the burden was upon KPL to demonstrate that it could comply.
274 Kan. at 1044, 58 P.3d 668. In its brief, Pretty Prairie cites Reinecker v. Board of Trustees , 198 Kan. 715, 722, 426 P.2d 44 (1967), for its assertion that the County and Intervenors were required to cross-appeal the district court's conclusion that K.S.A. 25-3602 —not K.S.A. 12-757 —applies to protest petitions. But Reinecker is readily distinguishable.
193 Kan. at 570. We have clearly held that before an appellee may present adverse rulings to the appellate court it must file a cross-appeal. If the appellee does not, we have held that the issue is not properly before the court and may not be considered. See, e.g., Butler C.O. R.W.D. No. 8 v. Yates, 275 Kan. 291, 299, 64 P.3d 357 (2003); Inland Industries, Inc. v. Teamsters and Chauffeurs Local Union, 209 Kan. 349, 355, 496 P.2d 1327 (1972); Reinecker v. Board of Trustees, 198 Kan. 715, 722, 426 P.2d 44 ( 1967); James v. City of Pittsburg, 195 Kan. 462, 463, 407 P.2d 503 (1965). As noted previously, Gillespie's response to Cooke's petition for review of the Court of Appeals' December 2004 decision briefly argued that Cooke's statute of limitations argument was inappropriate for review because Cooke had not cross-appealed from Judge Pilshaw's failure to reach it, and the Court of Appeals Consequently did not address this "nonissue."
There is evidence in the record to support these findings and no cross-appeal has been taken by Aspen. The defendant Aspen cannot now question these findings on appeal. (See Gould v. Robinson, 181 Kan. 66, 70, 71, 309 P.2d 405; and Reinecker v. Board of Trustees, 198 Kan. 715, 722, 426 P.2d 44.) The plaintiff on appeal contends, as he did in the court below, that the trial court erred in refusing to allow damages in an amount equal to the cost of drilling the well on block "B". There was evidence introduced to establish the cost of drilling the well was between $18,000.00 and $20,000.00.
It is, of course, necessary that a cross-appeal be perfected in order for an appellee to obtain a review of such rulings. (See Gould v. Robinson, 181 Kan. 66, 70, 71, 309 P.2d 405; Fields v. Anderson Cattle Co., 193 Kan. 569, 396 P.2d 284; James v. City of Pittsburg, 195 Kan. 462, Syl. ¶ 1, 407 P.2d 503; and Reinecker v. Board of Trustees, 198 Kan. 715, 722, 426 P.2d 44.) Both the appeal and cross-appeal were perfected in this case and cross-appellee (Featherston) is entitled to a review of the order overruling his motion for summary judgment.
In essence, the principle may be stated, "if you don's raise it, you waive it." For analogous cases, see Schul v. Clapp, 154 Kan. 372, 376, 118 P.2d 570; Hoffman v. Sohio Petroleum Co., 179 Kan. 84-86, 292 P.2d 1107; Anderson Cattle Co. v. Kansas Turnpike Authority, 180 Kan. 749, 308 P.2d 172; Gould v. Robinson, 181 Kan. 66, 70, 71, 309 P.2d 405; Turner v. Benton, 183 Kan. 97, 102, 325 P.2d 349; James v. City of Pittsburg, 195 Kan. 462, 463, 407 P.2d 503; Scrammahorn v. Gibraltar Savings Loan Assn, 197 Kan. 410, 412, 416 P.2d 771, and Reinecker v. Board of Trustees, 198 Kan. 715, 722, 426 P.2d 44. In the instant case, this court was not appealed to for a review of whether the findings of fact were supported by substantial evidence, so, right or wrong, the findings settled the question of the deviation of assessment on Northern's property and other real estate in Rice County and became the law of the case, and may not now be considered by this court upon appellate review.
In Aycock v. Houston Lighting Power Co., 175 S.W.2d 710 (Tex.), which was an eminent domain proceeding to condemn an easement for the construction of lines to transmit and distribute electric current, the Texas appellate court ruled that the trial court did not err in adjudging the power company, as part of its easement, had acquired the right to erect, maintain and service underground wires. This court has recently said in Soden v. State Highway Commission, 192 Kan. 241, 387 P.2d 182; Reinecker v. Board of Trustees, 198 Kan. 715, 426 P.2d 44 and Shelor v. Western Power Gas Co., 202 Kan. 428, 449 P.2d 591, that in determining the extent of land needed for legitimate public purposes, it is proper to consider future demands which may reasonably be anticipated. These holdings mirror the generally accepted view that land condemned in the public interest is taken for such present and prospective uses as are consistent with the purpose for which the land is appropriated. ( S.C. State Hwy. Dept. v. Butterfield et ux., supra; Hennick v. Kansas City Southern Ry. Co., supra.)
No particular ten acres is designated. In Reinecker v. Board of Trustees, 198 Kan. 715, 426 P.2d 44, we said: "In the absence of a statute limiting the amount of land which may be appropriated for a public purpose, a grantee of the power of eminent domain is vested with reasonable discretion in determining the amount of land required for such purpose and its discretion may not be disturbed on judicial review unless there has been fraud, bad faith or an abuse of discretion."
Further, a community college is a municipal corporation. See K.S.A. 71-701; Reinecker v. Board of Trustees, 198 Kan. 715 (1967). See also Attorney General Opinion No. 88-157 (recreation commission).
See, e.g., Adams v. Greenwich Water Co., 138 Conn. 205, 83 A.2d 177, 182 (1951) ("On the question of the necessity of a taking, needs which will arise in the reasonably foreseeable future must be taken into consideration."); State ex rel. Sharp v. 0.62033 Acres of Land, 110 A.2d 1, 6 (Del. Super. Ct. 1954) (noting "the condemning authority may not exceed that which may in good faith be presumed to be necessary for future use within a reasonable time"); Reinecker v. Bd. of Trs., 198 Kan. 715, 426 P.2d 44, 47 (1967) (noting "in determining what property is needed for public use, not only present demands, but those which may fairly be anticipated in the future, may be considered"); Pike County Board of Education v. Ford, 279 S.W.2d 245, 248 (Ky. 1955) (in determining whether a taking is necessary for public use, not only present demands but also those "fairly anticipated in the future" are proper inquiries); Exeter & Hampton Elec. Co. v. Harding, 105 N.H. 317, 199 A.2d 298, 299 (1964) ("The law is clear that property may be taken not only for present demands but for uses which may be fairly anticipated in the future."). But see United States v. Certain Parcels of Land, 215 F.2d 140, 147 (3d Cir. 1954) ("Once it is administratively determined that a property is to be taken for a public use, a United States court ordinarily will not review the reasonableness of the government's decision as to the time of taking"); United States v. 18.67 Acres of Land, 793 F.Supp. 582, 586 (M.D. Pa. 1992) (timing "is