Mettee v. Kemp

• Decision Date: 02 March 1985
• Docket Number: No. 56451,56451
• Citation: 236 Kan. 781,696 P.2d 947
• Parties: Richard B. METTEE and Michelene N. Mettee, Husband and Wife, et al., Appellees, v. John B. KEMP, Secretary of Transportation of the State of Kansas, Appellant.
• Court: Kansas Supreme Court

Page 947

696 P.2d 947

236 Kan. 781

Richard B. METTEE and Michelene N. Mettee, Husband and Wife et al., Appellees, v. John B. KEMP, Secretary of Transportation of the State of Kansas, Appellant.

No. 56451.

Supreme Court of Kansas.

March 2, 1985.

Syllabus by the Court

In order for the verdict of a jury in a condemnation case to be upheld as within the range of the evidence, the jury's findings as to the "before" and "after" value of the property taken must fall within the range of the opinion testimony. The opinion testimony includes the opinion of the landowner as to value.

Susan Ellmaker, of Gates & Clyde, Chartered, Overland Park, argued the cause and was on the briefs, for appellant.

Thomas H. Bornholdt, of Bornholdt, Landeck & Owens, Overland Park, argued the cause, and Lewis A. Heaven, Jr., of Bennett & Heaven, Shawnee Mission, was with him on the brief, for appellees.

PRAGER, Justice:

This is an appeal in a condemnation action brought by the Kansas Department of Transportation in July 1982, to condemn land owned by Richard B. Mettee and his family (the landowners). The subject property is located on the northwest corner of the north intersection of highways K-7 and K-10 in Johnson County. The land was condemned for the purpose of widening K-7 and constructing a cloverleaf interchange. The land involved in this case was a rectangular-shaped tract consisting of approximately 235 acres before the condemnation and 196 acres after the condemnation. As a part of the condemnation, the State took part of the access rights to the property.

The court-appointed appraisers found the tract to be valued at $864,001 before the taking and $679,469 after the taking. They awarded these landowners the difference as damages in the amount of $184,532. The landowners appealed the appraisers' award. The appeal was tried to a jury by the district court in January 1983. The jury returned a verdict finding the value of the property before the taking to be $870,000 and the value after the taking to be $695,000. The jury awarded the difference in the amount of $175,000 as damages.

In May 1983, the trial court granted the landowners' motion for a new trial on the ground that the verdict was not supported by the evidence. A second trial was held in October 1983. A jury returned a verdict finding the value of the property before the taking to be $913,126 and $631,635 after the taking, awarding the difference of $281,761 as damages. The district court denied the condemnor's motion for a new trial, and an appeal was taken to the appellate courts.

The first issue raised on the appeal is that the trial court erred in granting the landowners' motion for a new trial after the first trial on the ground the jury verdict was not supported by the opinion testimony of the witnesses who testified at the trial. The opinion testimony of the three witnesses regarding the value of the land before and after the taking, the damages, and the jury's verdicts on those elements were as follows:

                APPRAISER       BEFORE      AFTER       DAMAGES
                ---------       ------      -----       -------
                                VALUE       VALUE
                                -----       -----
                Curtis Bliss    800,000.00  638,000.00  162,000.00
                Al Donoho       857,500.00  687,000.00  170,500.00
                William Hedges  940,000.00  490,000.00  450,000.00
                JURY VERDICT    870,000.00  695,000.00  175,000.00
                ------------
                

The landowners complained that the verdict of the jury was not within the scope of the evidence presented, because the jury found the value of the property after the taking to be $695,000 which was higher than the "after" value testified to by any of the witnesses. It should be noted that the jury's findings as to the "before" value and the damages awarded were within the range of the opinion testimony in the case. The trial court agreed with the landowners that the verdict was outside the evidence and granted a new trial.

There is some difficulty in determining the issue presented in this case because of a substantial conflict in the language used in a number of opinions of this court and of the Court of Appeals on the question whether a jury's specific findings on the value of the property both before and after the taking must be within the range of the opinions of the witnesses who testified at the trial. The measure of compensation to be applied where private property is taken for public use is covered by K.S.A. 26-513, which was originally enacted in 1963 and subsequently amended in 1969 (L.1969, ch. 196). K.S.A. 26-513 provides as follows:

"26-513. Same; compensation. (a) Necessity. Private property shall not be taken or damaged for public use without just compensation.

(b) Taking entire tract. If the entire tract of land or interest therein is taken, the measure of compensation is the value of the property or interest at the time of the taking.

"(c) Partial taking. If only a part of a tract of land or interest is taken, the compensation and measure of damages are the difference between the value of the entire property or interest immediately before the taking, and the value of that portion of the tract or interest remaining immediately after the taking.

"(d) Factors to be considered. In ascertaining the amount of compensation and damages as above defined, the following factors, without restriction because of enumeration, shall be given consideration if shown to exist but they are not to be considered as separate items of damages, but are to be considered only as they affect the total compensation and damage under the provisions of subsections (b) and (c) of this section:

"1. The most advantageous use to which the property is reasonably adaptable.

"2. Access to the property remaining.

"3. Appearance of the property remaining, if appearance is an element of value in connection with any use for which the property is reasonably adaptable.

"4. Productivity, convenience, use to be made of the property taken, or use of the property remaining.

"5. View, ventilation and light, to the extent that they are beneficial attributes to the use of which the remaining property is devoted or to which it is reasonably adaptable.

"6. Severance or division of a tract, whether the severance is initial or is in aggravation of a previous severance; changes of grade and loss of impairment of access by means of underpass or overpass incidental to changing the character or design of an existing improvement being considered as in aggravation of a previous severance, if in connection with the taking of additional land and needed to make the change in the improvement.

"7. Loss of trees and shrubbery to the extent that they affect the value of the land taken, and to the extent that their loss impairs the value of the land remaining.

"8. Cost of new fences or loss of fences and the cost of replacing them with fences of like quality, to the extent that such loss affects the value of the property remaining.

"9. Destruction of a legal nonconforming use.

"10. Damage to property abutting on a right-of-way due to change of grade where accompanied by a taking of land.

"11. Proximity of new improvement to improvements remaining on condemnee's land.

"12. Loss of or damage to growing crops.

"13. That the property could be or had been adapted to a use which was profitably carried on.

"14. Cost of new drains or loss of drains and the cost of replacing them with drains of like quality, to the extent that such loss affects the value of the property remaining.

"15. Cost of new private roads or passageways or loss of private roads or passageways and the cost of replacing them with private roads or passageways of like quality, to the extent that such loss affects the value of the property remaining." (Emphasis supplied.)

In this case we have a partial taking of a tract of land, and it should be noted that under K.S.A. 26-513(c), the compensation and measure of damages is the difference between the value of the entire property immediately before the taking and the value of that portion of the tract remaining immediately after the taking. K.S.A. 26-513(d) enumerates a number of factors to be considered in ascertaining the amount of damages. That section specifically states that these factors are not to be considered as separate items of damages but are to be considered only as they affect the total compensation and damages under subsections (b) and (c). It is, thus, clear that it was the legislative intent that the amount of damages to be awarded where there is a partial taking is to be based upon the difference between the value of the property immediately before and immediately after the taking.

Prior to the effective date of K.S.A. 26-513, the customary procedure was for a jury to bring in a verdict stating the total amount of damages to be awarded the landowner without making a specific finding as to the value of the land before and after the taking.

In Diefenbach v. State Highway Commission, 195 Kan. 445, 407 P.2d 228 (1965), the landowners owned property outside the city of Wichita which was condemned in part for the building of a highway. The landowners were dissatisfied with the jury verdict and appealed, contending that the verdict was contrary to and not supported by the evidence. This court affirmed, stating that ordinarily a verdict for actual damages will not be disturbed on appeal merely because the reviewing court cannot ascertain the precise method by which the jury arrived at the exact amount of its verdict when such amount is reasonably within the range of the evidence.

In Urban Renewal Agency v. Tate, 196 Kan. 654, 414 P.2d 28 (1966), the land was taken on February 8, 1962, prior to the effective date of K.S.A. 26-513. There were only two witnesses at the trial, the landowner and one expert witness who testified on behalf of the Urban Renewal Agency. The landowner described the land and the improvements on it. The trial court permitted the landowner to testify that the...