Butler County RWD No. 8 v. Yates, 87,548

CourtUnited States State Supreme Court of Kansas
Citation64 P.3d 357,275 Kan. 291
Docket NumberNo. 87,548,87,548
Decision Date07 March 2003

275 Kan. 291
64 P.3d 357


No. 87,548

Supreme Court of Kansas

Opinion filed March 7, 2003.

Bradley A. Stout, of Thompson Stout & Goering, LLC, of Wichita, argued the cause and was on the brief for appellants.

Ray L. Connell, of Connell & Connell, of El Dorado, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by

275 Kan. 292

In this condemnation proceeding, the jury awarded the landowners, David M. Yates and Elizabeth M. Yates, $5,000 for the partial taking of their right to enforce a restrictive use covenant against the condemnor, Butler County Rural Water District No. 8 (Water District). The Yates contend that the district court erred in allowing expert witnesses to testify that the fair market value of their property was the same after the taking as before the taking. On our motion, this appeal has been transferred from the Court of Appeals. See K.S.A. 20-3018(c).

We affirm. Under the unique facts of this proceeding, we conclude the district court did not err in permitting the Water District's experts to testify there was no diminution of value as a result of the taking.

The Yates built a home on a 10-acre lot they purchased in a Butler County subdivision. The particular lot they purchased was identified as Lot 7, Towakoni Hills. The Yates' lot and other lots in the subdivision were subject to covenants and restrictions requiring them to be used for residential purposes. The properties to the north of the Yates' lot were zoned commercial, and some of the properties adjacent to the Yates' property were used commercially for mobile home sales and outdoor storage sales. The Yates had arranged for a 3-foot tall earthen berm with trees to be constructed between their property and the commercial properties. The Yates' property was served by a private well and a sewage lagoon.

The Water District acquired Lot 6, located immediately west of the Yates' property, for the purpose of constructing a water tower and other improvements. The Water District sought a special use permit to allow the proposed use, which was granted despite the Yates' objections. The Yates filed suit in Butler County District Court in an effort to enforce the covenants and restrictions and to vacate the special use permit. The Water District responded by adding the Yates' property as a taking in its pending condemnation proceeding.

The appraisers in the administrative condemnation action viewed the Yates' property, held a public hearing, and filed their report, valuing the Yates' restrictive covenant interest at $500. The

275 Kan. 293
Yates appealed the award of the appraisers and requested a jury trial on the issue of compensation and damages

At the jury trial, Sara Ralston and Richard Jiminez testified in their representative capacities as members of the Board of Directors of the Water District. Walter Sharp, Lewis Simmons, and Fayne Henson testified as expert witnesses on the appraised value of the Yates' real property on behalf of the Water District.

Sharp, Simmons, and Henson each testified that the appraised value of the Yates' property was $240,000 both before and after the Water District condemned the Yates' restrictive covenant interest. According to the Water District's expert witnesses, the damage to the Yates' property from the taking was zero. The Yates' trial counsel's objections to the admission of each expert's testimony, questioning its relevance, and his motions to strike were overruled.

David Yates testified that he would not have built his house at that location had he known that the Water District would erect a water tower on Lot 6. According to David, he had reviewed the covenants and restrictions limiting the Towakoni Hills properties to residential uses prior to his purchase of Lot 7 and considered them to be of great importance. David stated that he paid $319,000 to build his home and believed the value of his property after the taking was $200,000. David testified that he was requesting the jury to award him $119,000 in damages.

Brian Shepherd testified as the Yates' expert witness concerning the appraised value of the Yates' property. Shepherd testified that he conducted an independent study comparing the values of homes in western Butler County with and without restrictive covenants. He concluded that homes with restrictive covenants enjoyed a value of approximately 20% more than those without restrictive covenants. Immediately prior to the taking, he valued the property at $296,800, and immediately after the taking, he valued the property's value to be $235,600. According to Shepherd's analysis, the value of the taking of the protective covenants in question was $61,200.

After deliberations, the jury made its findings and awarded damages to the Yates. First, the jury found that the value of the property before the taking was $250,000 and its value after the taking was

275 Kan. 294
$245,000. Counsel for the Yates objected to these findings, however, on the basis that the $245,000 figure was outside the evidence. The trial court then further instructed the jury that the verdict must be within the range of the testimony of the witnesses and asked the jury to enter a verdict that complied with the requirements of Kansas law. The jury returned with a second verdict which found that the market value of the Yates' property immediately before the taking was $245,000 and immediately after the taking was $240,000. Thus, the jury awarded the Yates a judgment of $5,000 for the taking of their restrictive covenant interest

The question, as framed by the Yates on appeal, is whether a governmental entity may claim it paid just compensation for the private property it has taken while asserting at trial that the value of the interest taken was zero. The Water District frames the matter as whether the trial judge abused his discretion by admitting the testimony of its three expert witnesses.

The proper remedy for a taking in Kansas is controlled by statute. See K.S.A. 26-513; In re Condemnation of Land for State Highway Purposes, 269 Kan. 128, 129-30, 3 P.3d...

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48 cases
  • Miller v. Glacier Development Co., L.L.C., 94,999.
    • United States
    • United States State Supreme Court of Kansas
    • July 13, 2007
    ...Kan. 654, 657, 414 P.2d 28 (1966); The proper remedy for a taking in Kansas is controlled by statute. Butler County R.W.D. No. 8 v. Yates, 275 Kan. 291, 294, 64 P.3d 357 (2003). K.S.A. 26-513(e) defines "fair market value" as "the amount in terms of money that a well informed buyer is justi......
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