Lone Star Industries, Inc. v. Secretary of Kansas Dept. of Transp.

• Decision Date: 21 October 1983
• Docket Number: No. 54639,54639
• Parties: LONE STAR INDUSTRIES, INC., and Crupper Transport Company, Inc., Appellants, v. SECRETARY OF the KANSAS DEPARTMENT OF TRANSPORTATION, Appellee.
• Court: Kansas Supreme Court

Page 511

671 P.2d 511

234 Kan. 121

LONE STAR INDUSTRIES, INC., and Crupper Transport Company, Inc., Appellants, v. SECRETARY OF the KANSAS DEPARTMENT OF TRANSPORTATION, Appellee.

No. 54639.

Supreme Court of Kansas.

Oct. 21, 1983.

Syllabus by the Court

1. Inverse condemnation is an action or eminent domain proceeding initiated by the property owner rather than the condemner. It is available when private property has been actually taken for public use without formal condemnation proceedings and where it appears there is no intention or willingness of the taker to bring the action.

2. Inverse condemnation will not lie unless a taking has occurred.

3. The mere plotting or planning in anticipation of a public improvement does not constitute a taking or damaging of the property affected.

4. In consolidated actions seeking damages by inverse condemnation and relief in mandamus to compel the initiation of an eminent domain proceeding, the record is examined and it is held: (1) The commencement of eminent domain proceedings subsequent to the filing of appeal renders the appeal moot as to one plaintiff; (2) the district court did not err in dismissing the inverse condemnation action of the remaining plaintiff on the ground no cause of action had been stated by virtue of the legal insufficiency of the alleged "taking" of the property; (3) the district court did not err in dismissing the mandamus count as to said plaintiff; and (4) the district court did not abuse its discretion in consolidating the cases and in denying discovery.

Michael A. Preston, of McDonald & Dykes, Overland Park, argued the cause, and L.D. McDonald, Jr., Overland Park, of the same firm, was with him on the briefs for appellants.

Ronald D. Garrison, of Fallon, Holbrook & Ellis, Kansas City, argued the cause, and Reid F. Holbrook, Kansas City, of the same firm, and David G. Tittsworth, Chief Atty., Kansas Dept. of Transportation, Topeka, were with him on the brief for appellee.

McFARLAND, Justice:

On April 6, 1981, plaintiff Crupper Transport Company, Inc., commenced an action (81-C-1254) against defendant, Secretary of the Kansas Department of Transportation, seeking damages for inverse condemnation (Count I) and requesting mandamus to compel defendant to institute condemnation proceedings for the taking of plaintiff's property (Count II). On November 30, 1981, plaintiff Lone Star Industries commenced a near identical action (81-C-4487) against the same defendant. Both plaintiffs were represented by the same attorney. The two cases were subsequently consolidated and both were dismissed on grounds plaintiffs had failed to state causes of action on either count on the respective petitions (K.S.A. 60-212[b ]. Plaintiffs then filed joint notice of appeal.

Before proceeding further, it should be noted that subsequent to the filing of the notice of appeal, but before the time of oral argument herein, defendant Secretary has instituted eminent domain proceedings against the property of plaintiff Crupper Transport Company, Inc., which is involved herein. Clearly all elements of damage arising from the taking which are legally compensable will be determined in the eminent domain action, thereby rendering Count I moot as to Crupper. The mandamus cause of action (Count II) seeking to compel defendant to initiate an eminent domain action is likewise moot. This appeal so far as it relates to plaintiff Crupper Transport Company, Inc., is declared moot and is dismissed.

We turn now to the remaining plaintiff, Lone Star Industries, Inc. Lone Star manufactures cement and cement products at Third and Bunker Streets in Kansas City, Kansas. In 1970 defendant's predecessor, State Highway Commission, announced its intention to acquire land in Wyandotte County for construction of Interstate Highway 670 (I-670). Among properties proposed for acquisition was an unspecified portion of plaintiff's property. Defendant's representatives discussed the project with Lone Star representatives but neither definite plans nor a timetable for acquisition was established. Representatives of plaintiff and defendant have, through the intervening years, negotiated relative to acquisition of plaintiff's property, but no agreement has been reached. The lengthy and unfruitful discussions and negotiations were, at least in part, the result of the fact the proposed highway would, relative to plaintiff's property, be an elevated roadway which would trisect plaintiff's land. The extent of the required taking and its effect on the operation of the business apparently have never been fully determined.

The first issue is whether the district court erred in dismissing Count I on the ground plaintiff had failed to state a cause of action therein.

Count I of plaintiff's petition seeks damages based on the theory of inverse condemnation suffered by plaintiff's business as a result of the delay of defendant in moving forward with the taking of plaintiff's property. Specifically, plaintiff contends:

"That due to said actions and inactions of the defendant and his representatives, the plaintiff has suffered a disruption of its business operation; has been limited in its ability to contract business and to bid for said business due to the uncertainty of the plaintiff's ability to produce its product and in light of the required penalty clauses to said contracts; and the plaintiff has suffered unauthorized entry upon its property by the defendant, his employees, agents and representatives."

The unauthorized entry referred to in said contention concerns defendant's intrusion onto plaintiff's property for purposes of surveying and the taking of core samples rather than actual construction of the highway.

At this point a discussion of the background and general principles of law relative to eminent domain and inverse condemnation is appropriate.

The Fifth Amendment to the United States Constitution prohibits private property being taken for public use without just compensation. While the Kansas Constitution does not contain an identical provision, with the exception of art. 12, § 4, governing corporations, the Fifth Amendment prohibition is applicable to the states by way of the Fourteenth Amendment. Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 101 S.Ct. 446, 66 L.Ed.2d 358 (1980); San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621, 101 S.Ct. 1287, 67 L.Ed.2d 551 (1981); and Panhandle Co. v. Highway Comm'n, 294 U.S. 613, 618, 55 S.Ct. 563, 79 L.Ed. 1090, reh. denied 295 U.S. 768 (1935), rev'g State Highway Comm. v. Panhandle Eastern P.L. Co., 139 Kan. 185, 29 P.2d 1104, reh. denied 139 Kan. 849, 33 P.2d 151 (1934). See also 26 Am.Jur.2d, Eminent Domain § 8; and Nowak, Rotunda & Young, Constitutional Law, pp. 437-50 (1978). Further the constitutional prohibition is codified in Kansas in K.S.A. 26-513(a ) which provides private property shall not be taken or damaged for public use without just compensation. See also Urban Renewal Agency of Wichita v. Gospel Mission Church, 4 Kan.App.2d 101, 103, 603 P.2d 209 (1979), rev. denied 227 Kan. 928 (1980); and Consultation, Inc. v. City of Lawrence, 5 Kan.App.2d 486, 487, 619 P.2d 150 (1980), rev. denied 229 Kan. 669 (1981).

Eminent domain, as a legal term and concept, apparently originated in the works of the seventeenth century legal scholar Grotius. See Grotius, De Jure Belli ac Pacis Libri Tres, ch. 20, § VII, p 1 (1625), cited in 1 Thayer, Cases on Constitutional Law, p. 945 (1895), and Nowak, Rotunda & Young, Constitutional Law, p. 438. It is sufficient to say 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. Weast v. Budd, 186 Kan. 249, 252, 349 P.2d 912 (1960). The right is an inherent power of the soverign 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. 186 Kan. at 252, 349 P.2d 912; and Glover v. State Highway Comm., 147 Kan. 279, 285, 77 P.2d 189 (1938).

While eminent domain powers may only be exercised by the government or lawfully designated authority, a person having an interest in realty may compel a government to invoke those powers by bringing an action for inverse condemnation. 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. Ventures in Property I v. City of Wichita, 225 Kan. 698, Syl. p 3, 594 P.2d 671 (1979).

Both eminent domain and inverse condemnation involve a "taking" of real property without the owner's consent but with compensation. However, a government may, by the exercise of its police powers, regulate private property but not be deemed to have taken it so as to require compensation. In Lewis v. Globe Constr. Co., 6 Kan.App.2d 478, 630 P.2d 179, rev. denied 230 Kan. 818 (1981), the Court of Appeals held a temporary closing of a street for repairs fell within the police powers of the government, not the powers of eminent domain. 6 Kan.App.2d at 484, 630 P.2d 179. See also Smith v. State Highway Commission, 185 Kan. 445, 346 [234 Kan. 125] P.2d 259 (1959). If government imposes a restriction upon property which is too oppressive so as to deny the owner the use, benefit, and enjoyment of the realty, it may be deemed to have taken the land and be obligated to pay compensation. Eldridge v. City of Palo Alto, 57 Cal.App.3d 613, 621, 129 Cal.Rptr. 575 (1976); and Ventures in Property I v. City of Wichita, 225 Kan. at 710, 594 P.2d 671. Finally, no damages are allowable for a mere threat to condemn. Hood v....