Kansas' Eminent Domain Laws and Property Rights

The following responses are intended to provide general information about eminent domain laws in the featured state. Such information does not constitute legal advice. Anyone interested in learning more about eminent domain law and the impact it may have on a given set of facts should consult with an OCA attorney or another attorney experienced in handling eminent domain cases.

• What Are the Legal Requirements for Exercising the Power?

  The legal prerequisites for exercising the power of eminent domain are set forth in the specific statute and vary from case to case. However, the procedure to be followed when exercising the power of eminent domain are set forth in the Eminent Domain Procedure Act. K.S.A. 26-501 et seq.

• What Limitations or Defenses Exist?

  Under Kansas Law, private property shall not be taken except for public use and private property shall not be taken without just compensation. K.S.A. 26-501a(a). The taking of private property for the purpose of selling, leasing or otherwise transferring such property to any private entity is prohibited except in special limited circumstances defined by law. These limited circumstances include: (a) property that was lawfully taken but is subsequently deemed to be excess property; (b) property taken by public utilities, pipeline companies or other companies operating for a public use; (c) property taken by a municipality when the owner has acquiesced to the taking; (d) property taken by a municipality which has defective or unusual conditions of title; (e) property taken by a municipality which is unsafe for occupation; and (f) a taking expressly authorized by the legislature.
  
  A challenge to the right to take property must be brought as a separate action. The grounds to challenge the taking are generally limited to whether the State has granted authority for the taking, whether all statutory requirements have been satisfied, and whether a public use exists for the taking. In the latter case, the Court will most often defer to condemning agency’s determination of which the nature and scope of the taking fulfills a public use.

• What Constitutes a Public Purpose?

  The “public use” or “public purpose” requirement in Kansas has been broadly defined. Courts have typically deferred to the condemning agency to determine whether a desired use or purpose serves the public. Roads, parks, schools and water lines are examples of accepted public uses and purposes. In addition, oil and gas transportation pipelines or public utilities may satisfy the public use requirement.

• How is Just Compensation Determined?

  If the entire tract of land or interest in such land is taken, the measure of compensation is the fair market value of such property or interest. If only a part of the land or interest is taken, the compensation and measure of damages is the difference between the fair market value immediately before the taking and the value of the property or interest remaining immediately after the taking. In both cases, the determination of the amount of compensation and damages is made by a 3 person panel. The panelist are appointed by the court and must be disinterested residents of the county in which the property is located and two of the three panelist must have experience in the valuation of property.
  
  The panelist are required to view the property and to hold a public hearing at which they receive testimony from the condemning agency and each of the interested parties.

• How Is Fair Market Value Defined?

  Fair market value is defined as:
  
  “Fair market value” means the amount in terms of money that a well- informed buyer is justified in paying and a well-informed seller is justified in accepting for property in an open and competitive market, assuming that the parties are acting without undue compulsion. The fair market value shall be determined by use of the comparable sales, cost or capitalization of income appraisal methods or any combination of such methods. See K.S.A. 26-513(e)

• What About Recovering Damages to Remaining Property?

  Kansas law does include damage due to diminution in value of the remaining property. These damages must be considered when determining the value of the property immediately after the taking

• Is the Landowner Entitled to Recover Reasonable Attorney Fees? Expert Fees? Litigation Costs?

  Under Kansas law, attorney fees, expert witness fees and other litigation expenses incurred by a landowner in defending a condemnation action are generally not recoverable. However, if the condemning agency does not pay the amount awarded within 30 days from the time the appraisers’ report is filed, the taking is abandoned and the landowner is entitled to a judgment for cost and expenses including reasonable attorney’s fees. Instances where a condemning agency elects to abandon a taking are infrequent.