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26-513. Same; compensation required for taking and damage; determination. (a) Necessity. Private property shall not be taken or damaged for public use without just compensation.

(b) Taking entire tract. If the entire tract of land or interest in such land is taken, the measure of compensation is the fair market value of the property or interest at the time of the taking.

(c) Partial taking. If only a part of a tract of land or interest is taken, the compensation and measure of damages is the difference between the fair market value of the entire property or interest immediately before the taking, and the value of that portion of the tract or interest remaining immediately after the taking.

(d) Factors to be considered. In ascertaining the amount of compensation and damages, the following nonexclusive list of factors shall be considered if such factors are shown to exist. Such factors are not to be considered as separate items of damages, but are to be considered only as they affect the total compensation and damage under the provisions of subsections (b) and (c) of this section. Such factors are:

(1) The most advantageous use to which the property is reasonably adaptable.

(2) Access to the property remaining.

(3) Appearance of the property remaining, if appearance is an element of value in connection with any use for which the property is reasonably adaptable.

(4) Productivity, convenience, use to be made of the property taken, or use of the property remaining.

(5) View, ventilation and light, to the extent that they are beneficial attributes to the use of which the remaining property is devoted or to which it is reasonably adaptable.

(6) Severance or division of a tract, whether the severance is initial or is in aggravation of a previous severance; changes of grade and loss or impairment of access by means of underpass or overpass incidental to changing the character or design of an existing improvement being considered as in aggravation of a previous severance, if in connection with the taking of additional land and needed to make the change in the improvement.

(7) Loss of trees and shrubbery to the extent that they affect the value of the land taken, and to the extent that their loss impairs the value of the land remaining.

(8) Cost of new fences or loss of fences and the cost of replacing them with fences of like quality, to the extent that such loss affects the value of the property remaining.

(9) Destruction of a legal nonconforming use.

(10) Damage to property abutting on a right-of-way due to change of grade where accompanied by a taking of land.

(11) Proximity of new improvement to improvements remaining on condemnee's land.

(12) Loss of or damage to growing crops.

(13) That the property could be or had been adapted to a use which was profitably carried on.

(14) Cost of new drains or loss of drains and the cost of replacing them with drains of like quality, to the extent that such loss affects the value of the property remaining.

(15) Cost of new private roads or passageways or loss of private roads or passageways and the cost of replacing them with private roads or passageways of like quality, to the extent that such loss affects the value of the property remaining.

(e) Fair market value. "Fair market value" means the amount in terms of money that a well informed buyer is justified in paying and a well informed seller is justified in accepting for property in an open and competitive market, assuming that the parties are acting without undue compulsion. The fair market value shall be determined by use of the comparable sales, cost or capitalization of income appraisal methods or any combination of such methods.

History: L. 1963, ch. 234, § 13; L. 1969, ch. 196, § 2; L. 1999, ch. 111, § 3; April 22.

Law Review and Bar Journal References:

"The Eminent Domain Procedure Act," Marion Beatty, 32 J.B.A.K. 130 (1964).

"1969 Kansas Legislature—A Review of Enactment," Robert F. Bennett, 38 J.B.A.K. 89, 127 (1969).

Survey of Kansas law on real and personal property (1965-1969), 18 K.L.R. 427, 436 (1970).

Elimination of nonconforming uses; mobile homes in Kansas, Gerald E. Hertach, 20 K.L.R. 87, 107 (1971).

"Lateral Support—An Inversely Con-demnable Property Right," George A. Gaitas, 13W.L.J. 248, 249, 251 (1974).

"Dolan v. City of Tigard: Kansas Local Governments Beware—The Supreme Court Further Restricts the Authority of Municipalities to Condition Development Approval," Stephen P. Chinn, Neil R. Shortlidge & N. Cason Boudreau, 64 J.K.B.A. No. 9, 30, 35 (1995).

"Flooding of Private Property by the Construction of a Public Improvement: Isn't It Time for Kansas to Call It What It Really Is -- A Compensable Taking?" Nicole M. Zomberg, 38 W.L.J. 209 (1998).

"Condemnations and Taking of Access Rights in Kansas," Derek H. Potts, J.K.T.L.A. Vol. 28, No. 6, 8 (2005).

"Turbines vs. Tallgrass: Law, Policy, and a New Solution to Conflict over Wind Farms in the Kansas Flint Hills," Brian Dietz, 54 K.L.R. 1131 (2006).

"Taking Back the Fifth: Why Kansas' Approach to Inverse Condemnation Violates the United States Constitution and Leads to Unnecessary Confusion [Estate of Kirkpatrick v. Olathe, 178 P.3d 667 (Kan. Ct. App. 2008)]," Johnathan D. Stokes, 48 W.L.J. 241 (2008).

Attorney General's Opinions:

Annexation of lands located in water districts; title to facilities; agreement; compensation. 85-166.

Condemnation in cities; authority to condemn property which includes burial plot. 86-46.

Eminent domain; procedure act; human remains; compensation. 88-73.

CASE ANNOTATIONS

1. Doctrine of burden of proof not applicable to condemnation proceedings. City of Wichita v. Jennings, 199 Kan. 621, 626, 433 P.2d 351.

2. Subsection (c) considered; verdict of jury was "within the range" of the evidence. Kansas State Highway Commission v. Roepke, 200 Kan. 660, 663, 665, 666, 438 P.2d 122.

3. Compensation is necessary replacement in taking of property of one governmental agency by another. City of Wichita v. Unified School District No. 259, 201 Kan. 110, 439 P.2d 162.

4. Evidence establishing value of entire property before taking was properly taken. Humphries v. State Highway Commission, 201 Kan. 544, 546, 549, 442 P.2d 475.

5. No error in permitting landowner's witnesses to testify as to separate items of damage resulting from partial taking. Dibble v. State Highway Commission, 204 Kan. 111, 112, 460 P.2d 584.

6. Cost of removal by lessee of personalty from leased premises for reasonable distance is not compensable element of damage. City of Manhattan v. Eriksen, 204 Kan. 150, 153, 154, 155, 460 P.2d 522.

7. Applied; K.S.A. 68-413 does not provide procedure for exercising right of eminent domain, but merely designates interests which highway commission may acquire through such procedure. State Highway Commission v. Moore, 204 Kan. 502, 504, 464 P.2d 188.

8. Cost of removal by lessee of his personalty not an element of damage for which compensation is allowed. Phillips Petroleum Co. v. Bradley, 205 Kan. 242, 248, 468 P.2d 95.

9. Subsection (c) mentioned in determining rights of condemner in eminent domain proceeding (dissenting opinion). City of Bonner Springs v. Coleman, 206 Kan. 689, 700, 481 P.2d 950.

10. Legislature intent relating to just compensation and market value (dissenting opinion). State Highway Commission v. Lee, 207 Kan. 284, 313, 485 P.2d 310.

11. Where plaintiff establishes no "before" and "after" value, verdict not within range established by defendant cannot stand. City of Wichita v. May's Company, Inc., 212 Kan. 153, 155, 156, 510 P.2d 184.

12. Mentioned; no misconduct in awarding damages where jury added experts' estimated values and divided total obtained by number of experts. Hogue v. Kansas Power & Light Co., 212 Kan. 339, 345, 347, 510 P.2d 1308.

13. Mentioned; purchase of corporate utility on expiration of franchise is statutory contract right and value not determined under law of eminent domain. City of Kiowa v. Central Telephone & Utilities Corporation, 213 Kan. 169, 172, 515 P.2d 795.

14. Applied; unit rule method of valuation stated and applied; partial taking; award not based on improper evidence. Rostine v. City of Hutchinson, 219 Kan. 320, 323, 548 P.2d 756.

15. Compensable damages for taking access to motel; parol evidence upheld. Kohn Enterprises, Inc. v. City of Overland Park, 221 Kan. 230, 233, 559 P.2d 771.

16. Contention property damaged by factor specified in section; changing street to controlled access facility constituted taking private property for public use. Teachers Insurance & Annuity Ass'n of America v. City of Wichita, 221 Kan. 325, 329, 559 P.2d 347.

17. Subsection (c) applied; swine producing property did not qualify for "special use" determination of value. In re Central Kansas Electric Coop., Inc., 224 Kan. 308, 316, 317, 582 P.2d 228.

18. Method of establishing value of property upheld; no abuse of discretion in admission of testimony or evidence. Ellis v. City of Kansas City, 225 Kan. 168, 170, 171, 589 P.2d 552.

19. Subsections (a) and (b) mentioned; error to use the substitute facilities method of determining compensation in eminent domain proceedings against a church's property. Urban Renewal Agency of Wichita v. Gospel Mission Church, 4 Kan. App. 2d 101, 103, 105, 603 P.2d 209.

20. On issue of value jury is not bound by expert opinion evidence; all evidence may be considered. Kansas Power & Light Co. v. Floersch, 4 Kan. App. 2d 440, 608 P.2d 1023.

21. Condemnation proceeding not improper; comparable market values should be used where available. Consultation, Inc. v. City of Lawrence, 5 Kan. App. 2d 486, 487, 619 P.2d 150.

22. Trial court did not abuse discretion in excluding evidence of specific value of leasehold interest but allowing evidence thereof as factor in arriving at value. City of Manhattan v. Kent, 228 Kan. 513, 517, 618 P.2d 1180.

23. Public fear of power lines held proper consideration in determination of market value. Willsey v. Kansas City Power and Light Co., 6 Kan. App. 2d 599, 615, 631 P.2d 268 (1981).

24. Rights actually acquired by condemner is proper measure of compensation. Barcus v. City of Kansas City, 8 Kan. App. 2d 506, 507, 661 P.2d 806 (1983).

25. Cited; mere plotting and planning in anticipation of a public improvement does not constitute a taking or damaging property. Lone Star Industries, Inc. v. Secretary, Dept. of Transp., 234 Kan. 121, 123, 671 P.2d 511 (1983).

26. Evidence of comparable sales and various factors herein not authorization to find "before" and "after" values outside range of opinion evidence. Mettee v. Kemp, 236 Kan. 781, 789, 696 P.2d 947 (1985).

27. Condemnation award does not preclude trespass action for earlier damages not included in award. Grainland Farms, Inc. v. Arkansas Louisiana Gas Co., 11 Kan. App. 2d 402, 407, 722 P.2d 1125 (1986).

28. Method of determining compensatory damages where partial taking occurs reexamined and followed. Small v. Kemp, 240 Kan. 113, 116, 727 P.2d 904 (1986).

29. Rules for proportionate allocation of award among holders of separate interests in property (K.S.A. 26-517) determined. City of Manhattan v. Signor, 244 Kan. 630, 633, 772 P.2d 753 (1989).

30. Method of determining compensation for condemnation of underground gas storage reservoirs examined. Union Gas System, Inc. v. Carnahan, 245 Kan. 80, 81, 91, 774 P.2d 962 (1989).

31. Compensation for actual rights acquired rather than rights actually used, taking through exercise of police power examined. Hudson v. City of Shawnee, 245 Kan. 221, 225, 777 P.2d 800 (1989).

32. Unconstitutional taking of property examined where court disallowed damages for unreasonable denial of rezoning request. Jack v. City of Olathe, 245 Kan. 458, 468, 781 P.2d 1069 (1989).

33. Allocation of condemnation award between long-term lessee and landowners examined. City of Topeka v. Estate of Mays, 245 Kan. 546, 550, 781 P.2d 721 (1989).

34. Exercise of police power as noncompensable noted; closing all access as unreasonable determined. Hudson v. City of Shawnee, 246 Kan. 395, 400, 790 P.2d 933 (1990). (Modifying 245 Kan. 221, 777 P.2d 800 (1989)).

35. City not permitted to complain about what it must pay for taking for a future intended use. Van Horn v. City of Kansas City, 249 Kan. 404, 407, 409, 819 P.2d 624 (1991).

36. County's experts should have been permitted to testify. Board of Sedgwick County Comm'rs v. Kiser Living Trust, 250 Kan. 84, 98, 825 P.2d 130 (1992).

37. City is liable for economic loss resulting from regulation limiting plaintiff's access to commercial property. Garrett v. City of Topeka, 259 Kan. 896, 917, 916 P.2d 21 (1996).

38. Use of market data approach in determining distribution of condemnation award between separate interests not unconstitutional. City of Overland Park v. Dale F. Jenkins Revocable Trust, 263 Kan. 470, 477, 949 P.2d 1115 (1997).

39. Property owner claiming property taken by agency action; proper remedy was in tort, rather than inverse condemnation claim. Deisher v. Kansas Dept. of Transportation, 264 Kan. 762, 770, 958 P.2d 656 (1998).

40. No recovery for diminution of value due to regulation of traffic flow as a reasonable exercise of city's police power. City of Wichita v. McDonald's Corp., 266 Kan. 708, 971 P.2d 1189 (1999).

41. Where jury award is not within requirements of section new trial must be granted. In re Condemnation of Land for State Highway Purposes, 269 Kan. 128, 3 P.3d 1268 (2000).

42. Court cannot regulate factors or process by which appraiser values land; fair market value may be determined by three common methods or combination thereof. City of Wichita, Kansas v. Eisenring, 269 Kan. 767, 7 P.3d 1248 (2000).

43. In eminent domain action involving land with natural gas well, trial court reversed for failure to give instruction regarding value of gas well in ascertaining fair market value of property. Creason v. Unified Gov't of Wyandotte County, 272 Kan. 482, 33 P.3d 850 (2001).

44. Residential property owner suffered no loss in value of property when water district condemned adjacent residential lot to build water tower. Butler County R.W.D. No. 8 v. Yates, 275 Kan. 291, 64 P.3d 357 (2003).

45. Decisions as to whether to determine zoning classification and determination of zoning are for jury not appellate court. Board of Johnson County Comm'rs v. Smith, 280 Kan. 588, 123 P.3d 1271 (2005).

46. Only issue in appeal from condemnation award is fair market value at the time of the taking. Miller v. Bartle, 283 Kan. 108, 115, 150 P.3d 1282 (2007).

47. Use of rental value appraisal methodology for temporary easement complied with statute. City of Mission Hills v. Sexton, 284 Kan. 414, 422, 423, 160 P.3d 812 (2007).

48. Cited in discussion of fair market value in eminent domain appeal. Miller v. Glacier Development Co., 284 Kan. 476, 480, 161 P.3d 730 (2007).

49. Present possessory rights to land not necessary in inverse condemnation action. Isley v. City of Wichita, 38 Kan. App. 2d 1022, 1025, 174 P.3d 919 (2008).

50. The fifth amendment applies to states through the 14 th amendment; "taking" of property defined. Estate of Kirkpatrick v. City of Olathe, 39 Kan. App. 2d 162, 165, 167, 178 P.3d 667 (2008).

51. Appeal of denial of motion to stay eminent domain jury trial, district court did not lose jurisdiction. Harsch v. Miller, 288 Kan. 280, 200 P.3d 467 (2009).

52. Valuing of condemned land and appraisal methods discussed. Winkel v. Miller, 288 Kan. 455, 205 P.3d 688 (2009).

53. Eminent domain motion for summary judgment, nonmoving party has affirmative duty regarding facts to support party's claim. U.S.D. No. 232 v. CWD Investments, 288 Kan. 536, 205 P.3d 1245 (2009).

54. Court disapproves prior state case law that fails to provide just compensation for property damaged for public use. Estate of Kirkpatrick v. City of Olathe, 289 Kan. 554, 215 P.3d 561 (2009).

55. To be compensable, damages must be substantial and the planned or inevitable result of governmental action taken for public benefit. Frick v. City of Salina, 290 Kan. 869, 235 P.3d 1211 (2010).

56. Three methods are used equally for valuing property. Manhattan Ice & Cold Storage v. City of Manhattan, 294 Kan. 60, 274 P.3d 609 (2012).

57. Statute created a simple way to determine and prove up proper compensation for a partial taking; absent an abuse of discretion, trial court decision not second guessed by appellate court. Kansas City Power & Light Co. v. Strong, 302 Kan. 712, 727, 356 P.3d 1064 (2015).

58. In eminent domain or condemnation proceeding, the cost to replace fencing must be considered to the extent it affects the property's value and not as a separate item of damages. Pener v. King, 305 Kan. 1199, 1202-03, 391 P.3d 27 (2017).

59. Violation of a restrictive covenant running with subdivision land by a party with the power of eminent domain is a compensable taking of the dominant subdivision parcel owner's private property interest in real estate, and that owner may sue in inverse condemnation. Creegan v. State, 305 Kan. 1156, 391 P.3d 36 (2017).

60. In calculating amount of compensation in an eminent domain or condemnation proceeding, the cost of replacing fences with fences of like quality are to be considered as it affects the total compensation and not to be considered as a separate item of damages. Pener v. King, 305 Kan. 1199, 391 P.3d 27 (2017).

61. Value of gas storage and buffer rights under Kansas law based on tracts' potential use and proximity to natural gas storage field must be included in condemnation award. N. Natural Gas Co. v. L.D. Drilling, 862 F.3d 1221 (10 th Cir. 2017).

62. The eminent domain procedure act limits judicial review to the amount of compensation owed under K.S.A. 26-513 and provides no mechanism for judicial review of a denial of relocation benefits under K.S.A. 26-518. Kan. Fire & Safety Equip. v. City of Topeka, 62 Kan. App. 2d 341, 346, 514 P.3d 387 (2022), review granted, No. 123,063, 2022 WL 17101043 (Kan. Sept. 23, 2022).


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