Real Estate & Property Law

Kansas Supreme Court: Property Damaged For Public Use Requires Compensation

By Robert Thomas (inversecondemnation.com)

The constitutions and statutes of most states require just compensation to be paid whenever property is taken or damaged for public use. See, e.g., Cal. Const. art. I, § 19 ("Private property may be taken or damaged for a public use and only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner."); Haw. Const. art. I, §20 ("Private property shall not be taken or damaged for public use without just compensation."). The Fifth Amendment also requires compensation when property is damaged as the "direct result" of government action. See Sanguinetti v. United States, 264 U.S. 146 (1924)

Kansas statutes are no different, providing "Private property shall not be taken or damaged for public use without just compensation." Kan. Stat. § 26-513. (Apparently -- and correct me if I am wrong, Kansas lawyers -- the Kansas Constitution does not have a takings clause, and the public use and compensation requirements are creatures only of statute.)

Despite the express statutory command, for years Kansas courts prohibited the recovery of compensation in inverse condemnation actions when property was damaged. Instead, Kansas courts held that compensation was only available when the "damage was...necessary to the taking of the property for public use," meaning the condemnor "needed" to damage to occur in order to complete the project. See Deisher v. Kansas Dep't of Transportation, 958 P.2d 656 (Kan. 1998). Otherwise, the courts only permitted compensation when the government physically invaded land, or actually transferred an interest in property. 

Thus, in Estate of Kirkpatrick v. Olathe, 178 P.3d 667 (Kan. Ct. App. 2008), the Kansas Court of Appeals held that a property owner was not entitled to compensation when his property was damaged by the city's construction of a roundabout next to his land. The construction resulted in drainage problems on Kirkpatrick's property, and applying the damage statute, the trial court concluded the city inversely condemned the property. But the Court of Appeals, following Kansas precedents, reversed.

In Estate of Kilpatrick v. City of Olathe, No. 96,229 (Sep. 4, 2009), the Kansas Supreme Court reversed years of its (erroneous) case law, and held that property owners in an inverse condemnation action may seek just compensation for damage to their property.  The court first noted "The conclusion that compensation is only required where a transfer of property rights has occurred or where property damage is needed to complete a public improvement project is not based in the language of the [statute], however. Rather, the definition comes from this court's case law predating the adoption of the eminent domain statutes." After walking through the case law, the court concluded:

Instead of recognizing the statutory language of K.S.A. 26-513(a), which plainly states that compensation must be paid for property damage resulting from a public improvement project, each of these decisions adhered to pre-EDPA case law defining "'take" (or 'taken') in Kansas eminent domain law to mean the acquiring of possession as well as the right of possession and control of tangible property to the exclusion of the former owner." 234 Kan. at 125 (citing Steck and Foster). This disregard for the EDPA provisions has led to legal acrobatics in many of our recent inverse condemnation decisions, illustrated most pointedly by the court's opinion in Deisher, 264 Kan. 762.

. . .

In order to give full effect to K.S.A. 26-513 and the other provisions of the EDPA, we disapprove of our prior case law that fails to take into account the statutory requirement that just compensation be provided for property damaged for public use.

The court also confirmed the trial court's award of attorneys fees and costs to the property owner pursuant to 42 U.S.C. § 4654(c) (2006) (the roundabout project received federal funds). A pdf copy of the court's opinion is available here. A report on the decision from the Kansas City Star here.

For a cogent criticism of the court of appeals decision, see Jonathan D. Stokes, 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)], 48 Washburn L. J. 241 (2008) (available here).

Full post as published by inversecondemnation on September 08, 2009 (boomark / email).