Session of 1998
By Senator Hensley
            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.
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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  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  &nbspc/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  &nbspc/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  &nbspc/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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  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.