Estate of Kirkpatrick v. City of Olathe

• Citation: 215 P.3d 561
• Decision Date: 04 September 2009
• Docket Number: No. 96,229.,No. 96,981.,96,229.,96,981.
• Parties: ESTATE OF Archie KIRKPATRICK, Appellee, v. The CITY OF OLATHE, Kansas, Appellant, and Cook, Flatt & Strobel, Engineers, P.A., Defendant.
• Court: Kansas Supreme Court

215 P.3d 561

ESTATE OF Archie KIRKPATRICK, Appellee, v. The CITY OF OLATHE, Kansas, Appellant, and Cook, Flatt & Strobel, Engineers, P.A., Defendant.

No. 96,229.

No. 96,981.

Supreme Court of Kansas.

September 4, 2009.

James A. Gottschalk, of the Law Offices of Donald B. Balfour, of Chesterfield, Missouri, and Leonard A. Hall, assistant city attorney, of Olathe, argued the cause, and Diane S. Mills, of the Law Offices of Donald B. Balfour, of Overland Park, was with Leonard A. Hall on the briefs for appellant.

Nancy J. Crawford, of Smithyman & Zakoura, Chartered, of Overland Park, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by DAVIS, J.:

This inverse condemnation appeal comes before us on the landowner's petition for review of the decision by the Kansas Court of Appeals in Estate of Kirkpatrick v. City of Olathe, 39 Kan.App.2d 162, 178 P.3d 667 (2008). The landowner claimed that his home was substantially damaged as a result of the City of Olathe's construction of an adjacent roundabout, which altered the flow of groundwater in the area. The district court awarded the landowner compensation under K.S.A. 26-513. The Court of Appeals reversed, concluding that mere damage to real property is not compensable under Kansas eminent domain law unless the damage is necessary to the completion of a public improvement project. 39 Kan.App.2d at 169-70, 178 P.3d 667.

The facts giving rise to this action and its disposition are accurately recounted in the Court of Appeals opinion:

"Archie Kirkpatrick owned and resided in property that sits on the northwest corner of the intersection at Ridgeview Road and Sheridan Avenue when the City approved a plan to improve that intersection with the construction of a roundabout. As part of the intersection improvement, the City took by eminent domain 355 square feet of Kirkpatrick's property for a permanent road right-of-way and 426 square feet for a temporary construction easement. Kirkpatrick did not appeal the compensation awarded in the eminent domain proceeding.

"The City began construction of the roundabout in early 2000 and completed it in July 2001. According to the district court, the City became aware of `potential drainage problems' soon after it began construction and concluded the water problems would subside after construction was complete. In late June 2001, [Wayne DuVall,] a friend of Kirkpatrick's, excavated near the house to determine the cause of the basement water problems at Kirkpatrick's residence. During excavation, DuVall noticed that the hole he dug was dry from the surface down 4 feet, but from there, wet to the bottom of the approximately 9-foot hole. DuVall installed a second sump pump but apparently did not fix the basement water problems, and water continued to enter the house after it rained. Kirkpatrick hired the May Development Company (May) to do additional foundation repair to his house in the summer of 2003. Over the course of the summer, May installed another sump pump in the house, jacked up the house, and installed piers and steel supports along the back foundation. During early August 2003, the basement floor cracked.

"In September 2003, Kirkpatrick filed a claim under the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq., against the City. Kirkpatrick alleged the City had damaged or taken his property `due to [the] change of grade or disruption of natural underground barriers as a result of the construction of public improvements located at the intersection of Ridgeview Road and Sheridan Avenue....' Because the City did not respond to Kirkpatrick's claim within 120 days, Kirkpatrick filed his petition against the City on January 21, 2004, and later amended to include the project engineer, the construction contractor, and the project inspector as defendants after these parties were brought in through third-party actions. After Kirkpatrick's death in September 2005, Kirkpatrick's estate (Kirkpatrick or Estate) was substituted as plaintiff.

"The City filed two summary judgment motions in which it argued that it was immune from liability for the tort claims under the KTCA and that the property Kirkpatrick alleged was taken without compensation was acquired in the City's condemnation proceeding. It does not appear that it ruled on the first summary judgment motion, but the district court denied the second motion. The district court rejected the City's second motion for summary judgment after concluding that whether the City's diversion of groundwater into Kirkpatrick's property was a natural consequence of the improvement or resulted from a negligent deviation from the approved design was a substantial material fact that precluded summary judgment.

"The court later held a bench trial on Kirkpatrick's action. In its journal entry of judgment, the district court concluded that the City conformed to the necessary standard of care in designing the round-about. Further, the court concluded that no party had negligently deviated from the approved plan, and thus no party negligently caused damage to Kirkpatrick's property. The court then analyzed the inverse condemnation claim and concluded that the City partially took Kirkpatrick's property by damaging it without paying just compensation for its taking....

"Based on the court's findings, Kirkpatrick orally moved for attorney fees and offered to give the court a copy of Bonanza, Inc. v. Carlson, 269 Kan. 705, 9 P.3d 541 (2000). After considering the parties' motions and arguments, the court awarded Kirkpatrick fees under K.S.A. 58-3502 over the City's objections." 39 Kan. App.2d at 163-65, 178 P.3d 667.

The City appealed, arguing that its actions in constructing the roundabout did not constitute a compensable taking of the Estate's property. The Court of Appeals agreed and reversed. 39 Kan.App.2d at 170, 178 P.3d 667. We granted the Estate's petition for review; we now reverse the decision of the Court of Appeals and affirm the judgment of the district court.

Court of Appeals Decision

In reaching its decision, the Court of Appeals considered the Kansas Eminent Domain Procedure Act (EDPA), K.S.A. 26-501 et seq., as well as Kansas case law regarding inverse condemnation. The Court of Appeals noted a "fundamental tension" between the statutory language of the EDPA, which recognizes that a compensable taking includes "property damaged" during the course of a public improvement project, and this court's case law, which has held that damage is only compensable if it is "necessary" to the completion of such a project. Estate of Kirkpatrick, 39 Kan.App.2d at 167-69, 178 P.3d 667. Compare K.S.A. 26-513(a) with Deisher v. Kansas Dept. of Transportation, 264 Kan. 762, 772, 958 P.2d 656 (1998). Despite the express provision of the statute relating to "property damaged," the Court of Appeals concluded it was bound to follow the "controlling Supreme Court authority" holding "that mere damage to an adjoining property is not a compensable taking unless the damage was necessary to the completion of the public use project." 39 Kan.App.2d at 169, 178 P.3d 667. The Court of Appeals concluded that

"the City excavated adjacent land and changed the grade in constructing the roundabout, but no property or property right was taken. Moreover, the City may have caused more water to invade Kirkpatrick's property than before the construction, but any such invasion or diversion of water was not necessary to the public improvement." 39 Kan.App.2d at 169, 178 P.3d 667.

We granted the Estate's petition for review to clarify the apparent discrepancy between the plain language of the EDPA and our case law.

DISCUSSION AND ANALYSIS

This court has long recognized that "the right to take private property for a public use is inherent in the state." State, ex rel. v. Urban Renewal Agency of Kansas City, 179 Kan. 435, 438, 296 P.2d 656 (1956). Nevertheless, the State's power of eminent domain is limited by both federal and state law. In particular, the Fifth Amendment to the United States Constitution, made applicable to the states by way of the Fourteenth Amendment, provides that "private property [shall not] be taken for public use, without just compensation."

Since the enactment the EDPA in 1963, procedures governing the exercise of eminent domain in Kansas have been defined by statute. See L.1963, ch. 234, sec. 13. Notable to our discussion here, K.S.A. 26-513 commences with a codification of the Fifth Amendment, providing that "[p]rivate property shall not be taken or damaged for public use without just compensation." K.S.A. 26-513(a).

Ordinarily, eminent domain proceedings are initiated by the condemning authority to determine the extent of the property taken and the compensation due under EDPA and the United States Constitution. See, e.g., Miller v. Glacier Development Co., 284 Kan. 476, 499, 161 P.3d 730 (2007). Inverse condemnation proceedings, such as those giving rise to the present appeal, are initiated by the party having a property interest (instead of the condemning authority) and are available when private property has been taken for public use without the initiation of formal condemnation proceedings by the government. Kau Kau Take Home No. 1 v. City of Wichita, 281 Kan. 1185, 1189, 135 P.3d 1221 (2006), cert. denied 549 U.S. 1265, 127 S.Ct. 1495, 167 L.Ed.2d 229 (2007); see Nat'l Compressed Steel Corp. v. Unified Gov't of Wyandotte County/Kansas City, 272 Kan. 1239, 1245, 38 P.3d 723 (2002) (inverse condemnation action "available only where private property has been actually taken for public use without formal condemnation proceedings and it appears that there is no intention or willingness of the taker to bring such proceedings").

To succeed on a claim for inverse condemnation, a party must establish that he or she has an interest in real property affected by a public improvement project and that a taking has occurred. The question of whether there has...