Mr. Justice FRANKFURTER, dissenting.
Appellant contends that the provision of Kan.Gen.Stat.1949, § 26-202, allowing notice of the hearing on compensation to be given by one publication in the official city newspaper of itself violates the provision of the Fourteenth Amendment that no State shall 'deprive any person of life, liberty, or property, without due process of law * * *.' The first issue that faces us, however, is to decide from the pleadings exactly what it is that we must decide in this case.
Once appellant discovered that his land had been condemned and that the time for appeal from the award of the commissioners had passed, various possible courses of action, followed separately or in combination and each raising different issues, were open to him. If he considered the award fair but still desired to keep his land, he could have contended that unconstitutionality of the notice for the hearing on compensation invalidated the taking. If he considered the award unfair, he could have alleged in an appropriate action the unconstitutionality of the notice of the compensation hearing and the inadequacy of the compensation and sought to obtain fair compensation, see Ward v. Board of County Com'rs of Love County, 253 U.S. 17, 40 S.Ct. 419, 64 L.Ed. 751, or to restrain entry onto his land until he received a hearing under Kan.Gen.Stat.1949, § 26-202, or, making a further allegation of the invalidity of the taking, to obtain a permanent injunction. At this stage, it is not relevant for me to imply any opinion on the merits of any of these possible courses of action.
On a fair reading of the complaint, appellant chose to pursue only the first course. The theory of his action, an attempt to restrain the city from trespassing on his land, is that he still has the right to possession. His petition for injunction based this right to possession solely on the allegation that the statutory notice was insufficient. Nowhere in his petition for an injunction does appellant make any factual allegation that the money deposited by the commissioners did not represent the fair value of his land and therefore left him out of pocket. Nowhere did he indicate that he wanted an injunction only until he received a hearing. The whole theory of his petition is that the property that was being taken without due process of law was his land, not its money value.
In a memorandum filed after oral argument in this Court, appellant contends that the allegation of 'irreparable damage' is a sufficient allegation of monetary loss. He states: 'Of course, there could be no irreparable damage-indeed there could be no damage at all-unless the amount of the award was less than the actual value of the property. Had this been an action for damages, then an allegation of the differences in value would logically have been found in the petition. But it was an injunction proceeding.'
But an allegation of 'irreparable damage' is merely a legal conclusion, flowing from, and justified by, the necessary allegation of facts warranting injunctive relief. The usual factual assertion underlying such an allegation in a suit to restrain trespass is that the threatened continuous nature of the entry represents the 'irreparable damage.' Indeed, in his petition for injunction, appellant made the usual factual assertion, immediately preceding the prayer for relief:
'That at the present moment defendant City of Hutchinson, either itself, or by contractors employed by it, is, or is threatening to enter upon said real estate owned by the Plaintiff, and this for the purpose of building a highway across said real estate, all in utter and complete disregard of the rights of this Plaintiff.'
In view of this assertion and the absence of any other assertion with respect to 'irreparable damage,' appellant's claim that monetary loss is alleged is baseless.
