As Amended by Senate Committee
Session of 1998
SENATE BILL No. 448
By Committee on Judiciary
1-15
10
AN ACT concerning the eminent domain procedure act;
amending K.S.A.
11 26-504, 26-505, 26-508
and 26-513 and repealing the existing sections.
12
13 Be it enacted by the Legislature of the
State of Kansas:
14 Section 1. K.S.A.
26-504 is hereby amended to read as follows: 26-
15 504. If the judge to whom the proceeding
has been assigned finds from
16 the petition: (1) The plaintiff has the
power of eminent domain; and (2)
17 the taking is necessary to the lawful
corporate purposes of the plaintiff,
18 he the
judge, after hearing any suggestions and objections of any
party
19 appearing at the hearing shall enter
an order appointing three (3)
disin-
20 terested
householders residents
of the  c/ounty
judicial district county
in
21 which the petition is
filed or a contiguous county, who have
experi-
22 ence in the valuation of real
estate, to view and appraise the value of
23 the lots and parcels of land found to be
necessary, and to determine the
24 damages to the interested parties resulting
from the taking. Such order
25 shall also fix
determine the time for the filing of the appraisers'
report,
26 and such time for
filing shall not be later than twenty (20) days after
the
27 entry of such order:
Provided, except that the
time for filing of such report
28 shall not, in any event, be earlier than
20 days nor later than 60 days
29 after the entry of such order. For
good cause shown, the court may extend
30 the time for filing by a subsequent order.
The granting of an order de-
31 termining that the plaintiff has the power
of eminent domain and that
32 the taking is necessary to the lawful
corporate purposes of the plaintiff
33 shall not be considered a final order for
the purpose of appeal to the
34 supreme court, but an order denying the
petition shall be considered such
35 a final order.
36 Appeals to the supreme court
may be taken from any final order under
37 the provisions of this act. Such appeals
shall be prosecuted in like manner
38 as other appeals and shall take precedence
over other cases, except cases
39 of a like character and other cases in
which preference is granted by
40 statute.
41 Sec. 2. K.S.A.
26-505 is hereby amended to read as follows: 26-505.
42 After the appraisers are appointed they
shall take an oath to faithfully
43 discharge their duties as appraisers. The
judge shall instruct (tri-stars)em
the
SB 448--Am.
2
1 appraisers to the effect that
they are officers of the court and not rep-
2 resentatives of the plaintiff or any
other party, that they are to receive
3 their instructions only from the
judge, and he the judge shall
instruct them
4 as to the nature of their duties and
authority, and as to the basis, manner
5 and measure of ascertaining the value
of the land taken and damages
6 resulting
(tri-stars)erefrom from such
taking. The instructions shall be in writing.
7 The instructions shall prohibit
the appraisers from any meetings or dis-
8 cussions with representatives of
the plaintiff or the property owner with-
9 out allowing both parties an
opportunity to be present and to inspect and
10 receive copies of all written material
furnished to the appraisers. In ad-
11 dition, the judge may instruct the
appraisers regarding any other matters
12 relevant to the appraisers' performance
of their duties, including, but not
13 limited to, the authorization of special
studies relating to the land taken
14 and the land remaining after the taking.
Additional instructions may be
15 initiated by the court or upon written
motion by the plaintiff or any
16 defendant at any time prior to the
filing of the appraisers' report. Upon
17 the completion of their work the appraisers
shall file their report in the
18 office of the clerk of the district court
and the appraisers shall
(tri-stars)ereupon
19 notify the
 c/ondemner plaintiff of such
filing. The  c/ondemner shall
plain-
20 tiff, within three
(3) days after receiving such notice,
shall mail a written
21 notice of the filing of such report to
every person who owns any interest
22 in any of the property being taken, if the
address of such person is known,
23 and shall file in the office of the clerk
of the district court an affidavit
24 showing proof of the mailing of such
notice. The fees and expenses of
25 the appraisers shall be determined and
allowed by the court, including
26 any additional costs relating to special
studies.
27 Sec. 3. K.S.A.
26-508 is hereby amended to read as follows: 26-508.
28 If the
The plaintiff , or any
defendant , who is dissatisfied
with the award
29 of the appraisers ,
he may , within thirty (30) days after
the filing of the
30 appraisers' report, appeal
from the award by filing a written notice of
31 appeal with the clerk of the district
court. Except as otherwise provided,
32 such appeal shall be filed within 30
days of the following, whichever oc-
33 curs later: (1) The filing of the
appraisers' report; or (2) the mailing of the
34 written notice of the filing of such
report in accordance with the provisions
35 of K.S.A. 26-505 and amendments
thereto. In the event any parties shall
36 perfect an appeal, copies of such notice of
appeal shall be mailed to all
37 parties affected by such appeal, within
three (3) days after the date of
the
38 perfection
(tri-stars)ereof. An appeal by the
plaintiff or any defendant shall bring
39 the issue of damages to all
interest interests in the tract
before the court
40 for trial de novo. The appeal shall
be docketed as a civil action and tried
41 as any other civil
action :
Provided, however,
The , except that the only
42 issue to be determined
(tri-stars)erein at such trial
shall be that of just compen-
43 sation to be paid for the land or right
(tri-stars)erein taken at the time of
the
SB 448--Am.
3
1 taking and for any other damages
allowable by law. The time for appeal
2 taken pursuant to this section may
be extended by the court not to exceed
3 an additional 30 days upon a
showing of excusable neglect.
4
Sec. 4. K.S.A. 26-513 is hereby amended to read as
follows: 26-513.
5 (a) Necessity. Private
property shall not be taken or damaged for public
6 use without just compensation.
7 (b) Taking
entire tract. If the entire tract of land or interest
(tri-stars)erein
8 in such tract of land is
taken, the measure of compensation is the fair
9 market value of the property
or interest at the time of the taking.
10 (c) Partial
taking. If only a part of a tract of land or interest is
taken,
11 the compensation and measure of damages are
the difference between
12 the fair market value of the entire
property or interest immediately before
13 the taking, and the fair market
value of that portion of the tract or interest
14 remaining immediately after the taking.
15 (d) Factors to be
considered. In ascertaining the amount of compen-
16 sation and damages as
above defined, the following factors, without
re-
17 striction because of
enumeration, provided in this section, any
existing
18 factors that affect fair market
value shall be given consideration if
shown
19 to exist but they. Such
factors are not to be considered as separate items
20 of damages, but are to be considered only
as they affect the total com-
21 pensation and damage
under the provisions of as provided
by subsections
22 (b) and (c) of this
section. Factors that may be considered include,
but
23 shall not be limited to, the
following:
24
1. (1) The most
advantageous use to which the property is reasonably
25
adaptable .;
26
2. (2) access to the
property remaining .;
27
3. (3) appearance of the
property remaining, if appearance is an el-
28 ement of value in connection with any use
for which the property is
29 reasonably
adaptable .;
30
4. (4) productivity,
convenience, use to be made of the property
31 taken , or use
of the property remaining .;
32
5. (5) view, ventilation
and light, to the extent that they are beneficial
33 attributes to the use of which the
remaining property is devoted or to
34 which it is reasonably
adaptable .;
35
6. (6) severance or
division of a tract, whether the severance is initial
36 or is in aggravation of a previous
severance; changes of grade and loss or
37 impairment of access by means of underpass
or overpass incidental to
38 changing the character or design of an
existing improvement being con-
39 sidered as in aggravation of a previous
severance, if in connection with
40 the taking of additional land and needed to
make the change in the im-
41
provement .;
42
7. (7) loss of trees and
shrubbery to the extent that they affect the
43 value of the land taken, and to the extent
that their loss impairs the value
SB 448--Am.
4
1 of the land
remaining .;
2
8. (8) cost of new fences
or loss of fences and the cost of replacing
3 them with fences of like quality, to
the extent that such loss affects the
4 value of the property
remaining .;
5
9. (9) destruction of a
legal nonconforming use .;
6
10.(10 damage to property
abutting on a right-of-way due to change
7 of grade where accompanied by a
taking of land .;
8
11.(11) proximity of new
improvement to improvements remaining
9 on condemnee's
land .;
10
12.(12) loss of or damage
to growing crops .;
11
13. (13) that the property
could be or had been adapted to a use
12 which was profitably carried
on ;.
13
14. (14) cost of new
drains or loss of drains and the cost of replacing
14 them with drains of like quality, to the
extent that such loss affects the
15 value of the property
remaining .; and
16
15. (15) cost of new
private roads or passageways or loss of private
17 roads or passageways and the cost of
replacing them with private roads
18 or passageways of like quality, to the
extent that such loss affects the value
19 of the property remaining.
20 (e) Fair
Market Value. ``Fair market value'' means the amount
in
21 terms of money that a well informed
buyer is justified in paying and a
22 well informed seller is justified in
accepting for property in an open and
23 competitive market, assuming that the
parties are acting without com-
24 pulsion. The fair market value shall be
determined by use of the compa-
25 rable sales, cost or capitalization of
income or any other generally ac-
26 cepted appraisal method.
27 Sec. 5. K.S.A.
26-504, 26-505, 26-508 and 26-513 are hereby re-
28 pealed.
29 Sec. 6. This act
shall take effect and be in force from and after its
30 publication in the statute book.
31