Concerned Citizens, United, Inc. v. Kansas Power & Light Co.
| Decision Date | 15 June 1974 |
| Docket Number | No. 47440,47440 |
| Parties | CONCERNED CITIZENS, UNITED, INC., et al., Appellants, v. The KANSAS POWER AND LIGHT COMPANY, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. And eminent domain proceeding does not provide a forum for litigation of the right to exercise the power of eminent domain nor the extent thereof. Upon appeal to the district court from an award the sole issue is the amount of compensation due and no contest of the condemner's right to exercise the power of eminent domain is permitted. The condemnees may and must litigate the condemner's right to the exercise of the power of eminent domain in an individual civil action, usually by suit for injunction.
2. The power of eminent domain is an inherent power which is vested exclusively in the sovereign-the State of Kansas. Implicit in, and as an integral part of, that power is the authority in the sovereign, acting through the legislature, to delegate the power of eminent domain. Such power may be delegated by the legislature to any public authority to be exercised as directed.
3. In Kansas, the power of eminent domain has been delegated by the sovereign, acting through the legislature, to electric public utilities by K.S.A. 17-618. That delegation of power is limited, however, in the manner in which the electric public utility is to exercise the power. The statute provides that the electric public utility is to exercise its power of eminent domain in the manner set forth in K.S.A. 26-501 to 26-516.
4. Where an eminent domain proceeding is initiated pursuant to K.S.A. 26-501 by the filing of a petition in the district court, the determination that the taking is necessary to the lawful corporate purposes of the plaintiff under K.S.A. 26-504 is made by the district court from the allegations of the petition itself. The decision that the taking is necessary to the lawful corporate purposes of the condemning authority is a decision made by the condemning authority.
5. An electric public utility with power of eminent domain is vested with reasonable discretion to determine the necessity for the taking of land for its lawful corporate purposes, and when such discretion is exercised it will not be disturbed on judicial review unless fraud, bad faith or an abuse of discretion is shown.
6. In an injunction action, wherein the petitioners seek to enjoin the exercise of the power of eminent domain by an electric public utility to obtain land for the construction of an electric power facility, the burden of proof is upon the petitioners attacking the decision of the public utility.
7. If the decision of an electric public utility to exercise its power of eminent domain and take land which it determines necessary for its lawful corporate purposes-to construct and operate an electric power facility-is to withstand attack in an injunction proceeding, the decision must be free of abuse in the exercise of its discretionary power. To be free of such abuse, the decision of the electric public utility must be based upon a reasonable probability that the construction and operation of the electric power facility will comply with all applicable standards and meet the requirements for the issuance of all necessary permits, state and federal.
8. The burden of proof in an injunction action is upon the petitioners to sustain the allegations in their petition. The petitioners must show by their evidence that the decision of the condemner was not based upon a reasonable probability that the construction and operation of the electric power facility will comply with all applicable standards and meet the requirements for the issuance of all necessary permits, state and federal.
9. The legislature in delegating the power of eminent domain to an electric public utility directed the manner in which it was to be exercised, but the legislature did not impose rezoning as a condition precedent upon the electric public utility's exercise of its power of eminent domain.
10. In an injunction action wherein the petitioners seek to enjoin the exercise of the power of eminent domain by an electric public utility to obtain land for the construction of an electric power facility, the trial court made extensive findings of fact and conclusions of law. In substance, the trial court found from all the evidence that in the construction and operation of the electric power facility there was a reasonable probability the public utility would comply with all applicable standards and meet all requirements for the issuance of all necessary permits, and would not violate existing standards, regulations or laws. On appeal the record is examined and it is held: There is substantial, competent evidence in the record to support the findings made by the trial court.
11. In determining the extent of land needed for legitimate public purposes, where eminent domain proceedings are conducted, it is proper to consider future demands which may reasonably be anticipated.
12. To warrant injunctive relief it must clearly appear that some act has been done, or is threatened, which will produce irreparable injury to the party seeking such relief.
Bruce J. Terris, Washington, D. C., argued the cause and Nathalie V. Black, Washington, D. C., and Richard H. Seaton, Manhattan, N. Y., were with him on the brief for appellants.
James D. Waugh, Cosgrove, Webb & Oman, Topeka, argued the cause, and Edward L. Bailey, Topeka, was with him on the brief for appellees.
Collister & Kampschroeder, Lawrence, and James Concannon, Topeka, were on the brief amicus curiae, for Wolf Creek Nuclear Opposition, Inc.
Vern Miller, Atty. Gen., Lance W. Burr, and William H. Ward, Asst. Attys. Gen., were on the brief amicus curiae, for the State of Kansas.
This is an injunction action wherein the plaintiffs by their petition seek to enjoin the exercise of the power of eminent domain by the Kansas Power and Light Company (hereafter KPL) to obtain land for the construction of an electric power facility, unless and until it has demonstrated at least the reasonable likelihood that it can obtain necessary federal and state permits and zoning, and until it has definite plans in the reasonably near future to use the land for the production of electric power. Appeal has been duly perfected by the plaintiffs from an order of the District Court of Pottawatomie County, Kansas, denying their petition.
The appeal concerns the application of the Kansas law on eminent domain to the development of a huge energy center which KPL proposes to construct and operate.
The huge electric power complex proposed by KPL consists of one of the largest coal-burning power plants in the country and numerous appurtenances. The energy center will consist of four coal powered electric generating units, each unit capable of generating 680 megawatts of electric energy. The proposed center will be located on a site comprising 12,800 acres, north of Belvue, in Pottawatomie County, Kansas. Construction of the first unit is scheduled to start immediately, and the first unit is expected to be finished and 'on line' (generating electricity) in 1978. Unit No. 2 is presently planned to be 'on line' in 1979 or 1980. Units No. 3 and 4 are planned to be 'on line' no earlier (and probably later) than 1981 and 1984, respectively.
The appellants consist of the owners of a portion of the 800 acres of land needed by KPL to start work on the first unit of the energy center, plus the owners of some of the other acreage within the proposed energy center which KPL has, to date, been unable to purchase, and Concerned Citizens, United, Inc., a corporation.
Prior to the time KPL filed its petition to condemn the 800 acres it needed, this action was filed by the appellants wherein they sought to enjoin KPL from condemning land in the proposed energy center area, unless and until (a) KPL obtained certain 'necessary federal and state permits', (b) KPL has demonstrated that it can comply with federal and state laws, (c) KPL has received a change in the zoning of the land it seeks to condemn, and (d) KPL had definite plans in the reasonably near future to use the land for its purposes.
About two weeks after the appellants filed their petition for injunctive relief, KPL filed a petition seeking to acquire 800 acres (originally 860 acres) by eminent domain. Since the hearing in the trial court on this case, KPL has purchased a portion of the land involved in that condemnation case, so the total land which it sought to take, and has taken, is only 480 acres. However, all references will be to the 800 acres which were then the subject of the condemnation proceeding.
About two weeks after the filing of the condemnation proceeding, KPL filed its answer in this action, which put all matters at issue. The case went to trial, commencing December 19, 1973. The evidence was not developed in the customary manner, since the appellants relied heavily upon KPL's witnesses.
Prior to considering the possibility of a new energy center, KPL needed to determine if additional generating facilities were necessary for its purposes as an electric public utility. Their past and present projections led them to an inescapable conclusion that additional electric generating facilities are necessary now, and will be critically necessary by 1978, which is the first time the proposed energy center will be capable of generating electric energy from its first unit.
Once the necessity for additional generating facilities became apparent, KPL commenced determination of many technical, economic and environmental considerations concerning its proposed energy center. The important considerations-those at issue during the trial-and the manner by which KPL came to grips with these considerations are:
1. A determination was made of the fuel to be used for generation of electricity. In 1970 KPL considered the possibilities and concluded that the use...
To continue reading
Request your trial
-
Young Partners v. Board of Educ.
...is an inherent power which is vested exclusively in the sovereign — the State of Kansas." Concerned Citizens, United, Inc. v. Kansas Power & Light Co., 215 Kan. 218, 226, 523 P.2d 755 (1974). We have explained that "[i]mplicit in, and as an integral part of, that power is the authority in t......
-
County Com'rs of Frederick County v. Schrodel
...245 So.2d 209, 215 (Fla.1971); Mann v. City of Marshalltown, 265 N.W.2d 307, 315 (Iowa 1978); Concerned Citizens, United, Inc. v. Kansas Power & Light Co., 215 Kan. 218, 523 P.2d 755, 769 (1974); Northern Kentucky Port Authority v. Cornett, 625 S.W.2d 104, 105 (Ky.1981); Sellors v. Town of ......
-
Unified School Dist. No. 503 v. McKinney
...proof in an injunction action is upon the petitioner to sustain the allegations of its petition. Concerned Citizens, United, Inc. v. Kansas Power & Light Co., 215 Kan. 218, 523 P.2d 755 (1974). The Code of Civil Procedure, Chapter 60, Article 9, provides for the issuance by a court of an in......
-
Falkner v. Northern States Power Co.
...its public purpose that its right to take land by condemnation should be denied. See Concerned Citizens, United, Inc. v. Kansas Power & Light, Co., 215 Kan. 218, 523 P.2d 755, 769--771 (1974); State ex rel. Harlan v. Centralia Elec. Ry. & Power Co., 42 Wash. 632, 85 P. 344 (1906); Sellors v......
-
Chapter 11 ACQUISITION OF MINING AND MINE-RELATED RIGHTS THROUGH EMINENT DOMAIN
...645 (Ind.App., 1975); Schara v. Anaconda Co., supra note 60, 610 P.2d at 138; Concerned Citizens United, Inc. v. Kansas P. & L. Co., 215 Kan. 218, 523 P.2d 755, 769-770 (1974). [138] See note 60 supra. [139] "No person shall engage in mining or disturb land in anticipation of mining in the ......