Session of 1998
SENATE BILL No. 659
By Senator Hensley
2-13
9
AN ACT concerning the eminent domain procedure
act; amending K.S.A.
10 26-504, 26-505,
26-508, 26-509 and 26-513 and repealing the existing
11 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
county in which the petition is filed
21 or a contiguous county, who have
experience in the valuation of real es-
22 tate, to view and appraise the value
of the lots and parcels of land found
23 to be necessary, and to determine the
damages to the interested parties
24 resulting from the taking. Such order shall
also fix determine the time
for
25 the filing of the appraisers' report,
and such time for filing shall not
be
26 later than twenty (20) days after
the entry of such order:
Provided, except
27 that the time for filing of such report
shall not, in any event, be earlier
28 than 20 days nor later than 60 days
after the entry of such order. For
29 good cause shown, the court may extend the
time for filing by a subse-
30 quent order. The granting of an order
determining that the plaintiff has
31 the power of eminent domain and that the
taking is necessary to the lawful
32 corporate purposes of the plaintiff shall
not be considered a final order
33 for the purpose of appeal to the supreme
court, but an order denying the
34 petition shall be considered such a final
order.
35 Appeals to the supreme court
may be taken from any final order under
36 the provisions of this act. Such appeals
shall be prosecuted in like manner
37 as other appeals and shall take precedence
over other cases, except cases
38 of a like character and other cases in
which preference is granted by
39 statute.
40 Sec. 2. K.S.A.
26-505 is hereby amended to read as follows: 26-505.
41 After the appraisers are appointed they
shall take an oath to faithfully
42 discharge their duties as appraisers. The
judge shall instruct (tri-stars)em
the
43 appraisers to the effect that they
are officers of the court and not rep-
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2
1 resentatives of the plaintiff or any
other party, that they are to receive
2 their instructions only from the
judge, and he the judge shall
instruct them
3 as to the nature of their duties and
authority, and as to the basis, manner
4 and measure of ascertaining the value
of the land taken and damages
5 resulting
(tri-stars)erefrom from such
taking. The instructions shall be in writing.
6 The instructions shall prohibit
the appraisers from any meetings or dis-
7 cussions with representatives of
the plaintiff or the property owner with-
8 out allowing both parties an
opportunity to be present and to inspect and
9 receive copies of all written
material furnished to the appraisers. In ad-
10 dition, the judge may instruct the
appraisers regarding any other matters
11 relevant to the appraisers' performance
of their duties, including, but not
12 limited to, the authorization of special
studies relating to the land taken
13 and the land remaining after the taking.
Additional instructions may be
14 initiated by the court or upon written
motion by the plaintiff or any
15 defendant at any time prior to the
filing of the appraisers' report. Upon
16 the completion of their work the appraisers
shall file their report in the
17 office of the clerk of the district court
and the appraisers shall
(tri-stars)ereupon
18 notify the
 c/ondemner plaintiff of such
filing. The appraisers shall include
19 in their report the factors considered
in ascertaining the value of the
20 property and copies of any documents
supporting such value. The
 c/on-
21 demner shall
plaintiff, within three (3)
days after receiving such notice,
22 shall mail a written notice of the
filing of such report to every person who
23 owns any interest in any of the property
being taken, if the address of
24 such person is known, and shall file in the
office of the clerk of the district
25 court an affidavit showing proof of the
mailing of such notice. The fees
26 and expenses of the appraisers shall be
determined and allowed by the
27 court, including any additional costs
relating to special studies.
28 Sec. 3. K.S.A.
26-508 is hereby amended to read as follows: 26-508.
29 If the
The plaintiff , or any
defendant , who is dissatisfied
with the award
30 of the appraisers ,
he may , within thirty (30) days after
the filing of the
31 appraisers' report, appeal
from the award by filing a written notice of
32 appeal with the clerk of the district
court. Except as otherwise provided,
33 such appeal shall be filed within 30
days of the following, whichever oc-
34 curs later: (1) The filing of the
appraisers' report; or (2) the mailing of the
35 written notice of the filing of such
report in accordance with the provisions
36 of K.S.A. 26-505 and amendments
thereto. In the event any parties shall
37 perfect an appeal, copies of such notice of
appeal shall be mailed to all
38 parties affected by such appeal, within
three (3) days after the date of
the
39 perfection
(tri-stars)ereof. An appeal by the
plaintiff or any defendant shall bring
40 the issue of damages to all
interest interests in the tract
before the court
41 for trial de novo. The appeal shall
be docketed as a civil action and tried
42 as any other civil
action :
Provided, however,
The , except that the only
43 issue to be determined
(tri-stars)erein at such trial
shall be that of just compen-
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1 sation to be paid for the land or
right (tri-stars)erein taken at the
time of the
2 taking and for any other damages
allowable by law. The time for appeal
3 taken pursuant to this section may
be extended by the court not to exceed
4 an additional 30 days upon a
showing of excusable neglect.
5
Sec. 4. K.S.A. 26-509 is hereby amended to read as
follows: 26-509.
6 In an action on appeal the court
shall assign the case for trial to a jury,
7 or to a master in accordance with
K.S.A. 60-253, or acts amendatory
8 thereof or
supplemental and amendments thereto. Whenever the
plaintiff
9 condemner shall appeal the award of
the court-appointed appraisers, and
10 the jury renders a verdict for the
landowners in an amount greater than
11 said
the appraisers' award, the  c/ourt may
allow as court costs an amount
12 to be paid to the landowner's
attorney as landowners shall be allowed
13 reasonable attorney fees.
Whenever the landowners shall appeal the
14 award of the court-appointed appraisers,
and the jury renders a verdict
15 for the landowners in an amount greater
than the appraisers' award, the
16 landowners shall be allowed reasonable
attorney fees.
17 Sec. 5. K.S.A.
26-513 is hereby amended to read as follows: 26-513.
18 (a) Necessity. Private property
shall not be taken or damaged for public
19 use without just compensation.
20 (b) Taking entire
tract. If the entire tract of land or interest
(tri-stars)erein
21 in such tract of land is taken, the
measure of compensation is the fair
22 market value of the property or
interest at the time of the taking.
23 (c) Partial
taking. If only a part of a tract of land or interest is
taken,
24 the compensation and measure of damages are
the difference between
25 the fair market value of the entire
property or interest immediately before
26 the taking, and the fair market
value of that portion of the tract or interest
27 remaining immediately after the taking.
28 (d) Factors to be
considered. In ascertaining the amount of compen-
29 sation and damages as
above defined, the following factors, without
re-
30 striction because of
enumeration, provided in this section, any
existing
31 factors that affect fair market
value shall be given consideration if
shown
32 to exist but they. Such
factors are not to be considered as separate items
33 of damages, but are to be considered only
as they affect the total com-
34 pensation and damage
under the provisions of as provided
by subsections
35 (b) and (c) of this
section. Factors that may be considered include,
but
36 shall not be limited to, the
following:
37
1. (1) The most
advantageous use to which the property is reasonably
38
adaptable .;
39
2. (2) access to the
property remaining .;
40
3. (3) appearance of the
property remaining, if appearance is an el-
41 ement of value in connection with any use
for which the property is
42 reasonably
adaptable .;
43
4. (4) productivity,
convenience, use to be made of the property
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4
1 taken ,
or use of the property
remaining .;
2
5. (5) view, ventilation
and light, to the extent that they are beneficial
3 attributes to the use of which the
remaining property is devoted or to
4 which it is reasonably
adaptable .;
5
6. (6) severance or
division of a tract, whether the severance is initial
6 or is in aggravation of a previous
severance; changes of grade and loss or
7 impairment of access by means of
underpass or overpass incidental to
8 changing the character or design of
an existing improvement being con-
9 sidered as in aggravation of a
previous severance, if in connection with
10 the taking of additional land and needed to
make the change in the im-
11
provement .;
12
7. (7) loss of trees and
shrubbery to the extent that they affect the
13 value of the land taken, and to the extent
that their loss impairs the value
14 of the land
remaining .;
15
8. (8) cost of new fences
or loss of fences and the cost of replacing
16 them with fences of like quality, to the
extent that such loss affects the
17 value of the property
remaining .;
18
9. (9) destruction of a
legal nonconforming use .;
19
10.(10) damage to property
abutting on a right-of-way due to change
20 of grade where accompanied by a taking of
land .;
21
11.(11) proximity of new
improvement to improvements remaining
22 on condemnee's
land .;
23
12.(12) loss of or damage
to growing crops .;
24
13. (13) that the property
could be or had been adapted to a use
25 which was profitably carried
on ;.
26
14. (14) cost of new
drains or loss of drains and the cost of replacing
27 them with drains of like quality, to the
extent that such loss affects the
28 value of the property
remaining .; and
29
15. (15) cost of new
private roads or passageways or loss of private
30 roads or passageways and the cost of
replacing them with private roads
31 or passageways of like quality, to the
extent that such loss affects the value
32 of the property remaining.
33 (e) Fair
Market Value. ``Fair market value'' means the amount
in
34 terms of money that a well informed
buyer is justified in paying and a
35 well informed seller is justified in
accepting for property in an open and
36 competitive market, assuming that the
parties are acting without com-
37 pulsion. The fair market value shall be
determined by use of the compa-
38 rable sales, cost or capitalization of
income or any other generally ac-
39 cepted appraisal method.
40 Sec. 6. K.S.A.
26-504, 26-505, 26-508, 26-509 and 26-513 are hereby
41 repealed.
42 Sec. 7. This act
shall take effect and be in force from and after its
43 publication in the statute book.
44