As Amended by Senate Committee

          Session of 1998
By Committee on Judiciary
          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.
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  &nbspc/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.


  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  &nbspc/ondemner plaintiff of such filing. The  &nbspc/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.


  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.


  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.