Deisher v. Kansas Dept. of Transp.

• Court: Kansas Supreme Court
• Writing for the Court: LOCKETT
• Citation: Deisher v. Kansas Dept. of Transp., 958 P.2d 656, 264 Kan. 762 (Kan. 1998)
• Decision Date: 24 April 1998
• Docket Number: No. 78725,78725
• Parties: Francis and Phyllis DEISHER, Appellants, v. KANSAS DEPARTMENT OF TRANSPORTATION, Appellee.

Page 656

958 P.2d 656

264 Kan. 762

Francis and Phyllis DEISHER, Appellants, v. KANSAS DEPARTMENT OF TRANSPORTATION, Appellee.

No. 78725.

Supreme Court of Kansas.

April 24, 1998.

Syllabus by the Court

1. Rules of summary judgment are discussed.

2. The Fifth Amendment to the United States Constitution prohibits private property being taken for public use without just compensation. The constitutional prohibition is further codified in Kansas in K.S.A. 26-513(a), which provides that private property shall not be taken or damaged for public use without just compensation.

3. Eminent domain is the right and power of government or lawfully designated authority to take private property for public use without the owner's consent upon payment of just compensation. The right is an inherent power of the sovereign and comes into being with the establishment of government and continues as long as the government endures, but its exercise may be limited by the Constitution.

4. Inverse condemnation is an action or eminent domain proceeding initiated by a person having an interest in realty, rather than by the government condemner. It is available when private property has actually been taken for public use without formal condemnation proceedings and where it appears there is no intention or willingness on the part of the taker to bring an action to acquire the property.

5. A landowner may file an inverse condemnation claim within 15 years of the action accruing. K.S.A. 60-507.

6. In a condemnation or inverse condemnation action, the question of whether there has been a compensable taking of property is a question of law for the trial court.

7. A tort is an action for injury to the rights of another, not arising on contract. It has been defined as a violation of a duty imposed by law.

8. The limitation for bringing an action for damage to land is governed by K.S.A. 60-513(a)(1), which requires that the action be brought within 2 years.

9. Actions for damage to land are not deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the action accrues when the fact of injury becomes reasonably ascertainable to the injured party.

James B. Jackson, Kansas City, Missouri, argued the cause, and Joseph R. Borich, III, Leawood, was with him on the briefs, for appellant.

John W. Strahan, First Assistant Attorney, Kansas Department of Transportation, argued the cause, and Michael B. Rees, Chief Counsel, was with him on the brief, for appellee.

LOCKETT, Justice:

Plaintiffs filed an inverse condemnation action against the Kansas Department of Transportation (KDOT) alleging a loss of water to their well was caused by KDOT's actions. The district court found that plaintiffs' proper remedy was in tort rather than in inverse condemnation and granted summary judgment to KDOT. Plaintiffs appealed, claiming the district court erred in ruling that the plaintiffs could not bring an inverse condemnation action. The case was transferred from the Court of Appeals pursuant to K.S.A. 20-3018(c).

In 1982, the State of Kansas filed a condemnation action to secure property rights from Spring Hill Community Church (Church) to assist in the reconstruction of Highway 169 south of Olathe, Kansas. KDOT states:

"The condemnation petition was for a permanent easement for controlled access right of way and removal of borrow material over and upon a tract of land that overwrote an existing road easement located in front of the subject tract. The supplemental easement would allow for highway construction, scooping of road ditches, the removal of several walnut trees and construction of an entrance located in the front of a residence located on the property."

In July 1982, the Church conveyed by warranty deed the tract of land the State required for the construction easement. The tract of land was then deleted from the condemnation action by court order on July 26, 1982.

Subsequently, the Church sold a portion of the remainder of its land to the Deishers. The land conveyed contained a water well that existed prior to the conveyance of property to the State. According to the conveyance, the Church and the Deishers would share the well water.

In 1985, Clarkson Construction, the general contractor, began work on the highway improvement on the easement adjacent to the Deishers' land. As part of the work on KDOT's highway project, Clarkson performed blasting to aid in the removal of material.

Eight years later, in April 1993, the Deishers filed a petition for inverse condemnation against the Kansas Department of Transportation and Michael L. Johnston, Secretary of Transportation alleging that within the prior 2 years, plaintiffs had discovered that the water levels in their well had "gone down to unusable levels of less than 6 feet," while throughout the history of the property the water tables had been about 18-24 feet. The plaintiffs alleged that the cause of the drop in water level was the "construction, continuous use, maintenance and design of U.S. Highway 169" by KDOT and/or their agents. The Deishers further alleged that "the least part of the cause for said problems was due to blasting which took place near Plaintiffs property in 1988 for the purpose of construction." Plaintiffs claimed damages equal to the decrease in fair market value of their property ($100,000) and $50,000 to purchase a truck to carry water to the property.

In December 1994, plaintiff filed an amended petition adding Clarkson Construction as a defendant. In the amended petition, plaintiffs alleged that in "1985-1987," when KDOT contracted to have lighting done on Highway 169 in front of the property owned by the plaintiffs, Clarkson, the general contractor, performed blasting and "[a]s a direct and proximate result of a blasting done by Defendant Clarkson, ... the water tables of a certain well owned by the plaintiffs have receded to a certain level."

Count I of the amended petition alleged that the actions of KDOT "are of a continuing nature and deprive Plaintiffs of the constitutional right to enjoy their property, and said actions have deprived Plaintiffs of their property rights without compensation, without due process of law and are, in effect, an inverse condemnation." (During discovery, plaintiffs' expert was deposed and stated that blasting disturbed the underground strata of rock which served as a conduit for water coming into the plaintiffs' well.)

Count II of the amended petition alleged negligence against Clarkson in the widening of Highway 169 and in blasting related to the widening. Count III alleged Clarkson was strictly liable for damages resulting from conducting an ultrahazardous activity. The tort claims against Clarkson were dismissed because the 2-year statute of limitations had expired.

Subsequently, KDOT filed a motion for summary judgment. KDOT asserted that the 2-year limitation for bringing a tort action had expired prior to plaintiffs' filing their cause of action. The district judge agreed, finding in part:

"5. Plaintiffs do not claim that their well was damaged or disturbed by the blasting. Rather, their expert's opinion is that the blasting disturbed the underground strata of rock which served as a conduit for water coming into their well.

"6. The well lost water immediately following the blasting and has continued to show a lack of capacity to retain water.

"7. This lawsuit was filed sometime in 1993."

The district court then concluded:

"1. Inverse condemnation has been recognized as a cause of action in Kansas. In Sanders v. State Highway Commission, 211 Kan. 776, 508 P.2d 981 (1973), the Court stated:

'Inverse condemnation actions have long been recognized in Kansas. When land or rights therein are appropriated by a public corporation having rights of eminent domain without first procuring title the owner may waive formal condemnation proceedings and other formal modes of acquisition and sue to recover compensation. The owner may recover all damages which he has sustained by reason of the permanent taking and appropriation of his property.' 211 Kan. at 780, 508 P.2d 981.

"2. The right to maintain an inverse condemnation proceeding is rooted in concepts of implied contract. 'When a public entity appropriates and uses property or rights therein, without compensating the owner, an implied contractual obligation arises to pay the owner reasonable value of the property or rights taken without compensation.' Ventures in Property I v. City of Wichita, 225 Kan. 698, 706, 594 P.2d 671 (1979).

"3. 'Inverse condemnation is an action or eminent domain proceeding initiated by a person having an interest in realty rather than by the government condemner. It is available when private property has actually been taken for public use without formal condemnation proceedings and where it appears there is no intention or willingness on the part of the taker to bring an action to acquire the property.' Lone Star Industries, Inc. v. Secretary, Kansas Department of Transportation, 234 Kan. 121, 124, 671 P.2d 511 (1983).

"4. A taking, to be sufficient to serve as grounds for an inverse condemnation proceeding, is defined as 'the acquiring of possession as well as the right of possession and control of tangible property to the exclusion of the former owner, with such title in fee or easement as the statute under which the proceeding is had provides.' Lone Star, 234 Kan. at 125, 671 P.2d 511.

"5. Actual invasion of the property is not required in order to institute inverse condemnation proceedings. Ventures in Property I, 225 Kan. at 708, 594 P.2d 671.

"In Ventures in Property I, an inverse condemnation was found to have taken place when the city of Wichita refused to approve a plat for an owner of real estate to develop its property because the city had future plans to build a thoroughfare...