Miller v. Preisser

• Decision Date: 31 August 2012
• Docket Number: No. 103,938.,103,938.
• Citation: 284 P.3d 290
• Parties: Debra L. MILLER, in her Capacity as the Secretary of Transportation for the State of Kansas, Appellee, v. Lawrence PREISSER and Tracy Chambers, Appellants.
• Court: Kansas Supreme Court

284 P.3d 290

Debra L. MILLER, in her Capacity as the Secretary of Transportation for the State of Kansas, Appellee,

v.Lawrence PREISSER and Tracy Chambers, Appellants.

No. 103,938.

Supreme Court of Kansas.

Aug. 31, 2012.

Syllabus by the Court

1. The doctrine of assemblage applies when the highest and best use of a parcel of real property involves its integrated use with adjacent property. Pursuant to this doctrine, such prospective use may be properly considered in fixing the value of the property if its joinder with the adjacent property is reasonably practicable. If applicable, this doctrine allows a property owner to introduce evidence showing that the fair market value of his or her real property is enhanced by its probable assemblage with adjacent property.

2. In an eminent domain action, an owner of condemned real property relying on the doctrine of assemblage as a theory for valuing the condemned property has the burden to show there is a reasonable probability the claimed assemblage can be accomplished in the reasonably near future. When there is evidence supporting a reasonable probability that the condemned property can be joined with adjacent property, evidence of the use of the condemned property as an economic unit with adjacent property presents a fact question for the jury to determine and evidence can be admitted to show the condemned property's highest and best use, regardless of whether the owner of the condemned property owns the adjacent property.

3. In an eminent domain action, damages cannot be claimed for the diminution of the fair market value of a property that is adjacent to a condemned property if there is not a unity of ownership, and a jury should be instructed that an award of compensation must be limited to the loss in fair market value of the condemned property only. Nevertheless, even where severance damages to an adjacent property may not be appropriate, the possibility of joinder of two properties may still be a proper consideration in the valuation of the condemned property as relevant to evidence of highest and best use under the doctrine of assemblage.

4. The government's taking of direct access to an abutting roadway is a taking that is compensable in an eminent domain action. In contrast, the government's regulation of traffic flow that may impact indirect access to a nearby roadway is not compensable in an eminent domain action. If the regulation was unreasonable, it is void, rather than compensable.

5. The issue of the reasonableness of the government's regulation of traffic flow relates to the initial question of whether there was a taking, not to the question of the compensation for a taking. The Kansas Legislature has limited jurisdiction in an eminent domain action to the issue of appropriate compensation for a lawful taking, and neither the parties nor the court can expand the statutorily defined jurisdiction. Consequently, courts do not have jurisdiction to consider the issue of the reasonableness of the government's exercise of its police power during an appeal from the appraisers' award in an eminent domain action.

David M. Rapp, of Hinkle, Elkouri Law Firm, L.L.C., of Wichita, argued the cause and was on the brief for appellants.

Jason B. Prier, of Orrick and Associates, L.L.P., of Kansas City, argued the cause, and Patrick R. Watkins, of the same firm, and Timothy P. Orrick, of the same firm, of Overland Park, were with him on the brief for appellee.

Michael D. Irvin and Charles Arthur, of Manhattan, were on the brief for amicus curiae Kansas Farm Bureau.

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

This appeal in an eminent domain action raises questions of law regarding (1) the application of the assemblage doctrine as a theory of valuation, (2) whether a change of traffic patterns is a compensable taking, and (3) whether a court in an eminent domain action has subject matter jurisdiction over a claim that the government's exercise of its police power to regulate traffic was unreasonable.

As to the first issue, the district court ruled the landowners could not present evidence related to the doctrine of assemblage, which is a theory of valuation that allows consideration of the condemned property as an integrated economic unit with an adjacent property. The district court refused to allow evidence under this doctrine because the two properties did not have a unity of ownership at the time of the takings and because the owner of the adjacent property had already been awarded separate, individual compensation for a similar partial taking. We conclude the district court erred because unity of ownership is not required when a landowner presents the assemblage of two parcels of property solely for the purpose of establishing the highest and best use of the property; rather, it must merely be established that there is a reasonable probability of joinder of the properties, which is a jury question. Nor does it matter that the adjacent property is also condemned. While the landowners of the condemned property in this case cannot seek damages related to the impact on the value of the adjacent property, the district court's order did more than limit damages; it prohibited the landowners from presenting evidence regarding valuation based on use of their property as an integrated economic unit with an adjacent property, which should have been permitted. We, therefore, reverse the district court on this issue and remand the case so evidence related to the assemblage doctrine can be presented to a jury.

In the second issue, the landowners argue the district court erred in determining that a change in the traffic pattern for driving from their condemned property to a nearby highway was not compensable. We affirm the district court on this issue because the condemned property had the same direct access to the abutting roadway before and after the condemnation, and, although there was a change in the traffic pattern, that change is not a compensable loss under our prior caselaw. We, therefore, affirm the district court on this issue.

Finally, we conclude that neither this court nor the district court had subject matter jurisdiction in this eminent domain action to consider the reasonableness of the government's exercise of its police power in regulating traffic flow. If the government's action was unreasonable, it is void, not compensable. Yet, the Kansas Legislature has limited jurisdiction in an eminent domain action to the issue of appropriate compensation for a lawful taking, and neither the parties nor a court can expand the statutorily defined jurisdiction.

Facts and Procedural Background

In 2008, Debra L. Miller, in her capacity as the Secretary of Transportation for the State of Kansas (KDOT), filed an eminent domain action seeking temporary and permanent easements on property, referred to as Tract 47, owned by Lawrence Preisser and Tracy Chambers (Landowners). After the appraisers appointed in the eminent domain action awarded the Landowners $120,000 as damages, KDOT appealed under K.S.A. 26–508 in the district court and requested a trial de novo on the damages issue. Before trial, KDOT filed two motions, seeking exclusion of evidence relating to two potential damage theories. The district court granted KDOT's motions. Now, the Landowners appeal the award of damages to this court, arguing the district court erred in granting KDOT's pretrial motions. This court has jurisdiction pursuant to K.S.A. 26–504 (direct appeal to supreme court of any final order under the Eminent Domain Procedure Act, K.S.A. 26–501 et seq.).

The exercise of eminent domain that resulted in this case was related to KDOT's improvement of U.S. Highway 54/400 in Pratt County, Kansas (Highway Project). The Highway Project converted Highway 54/400 to a controlled access highway. To accomplish this, KDOT eliminated the direct connection of private driveways and some public roads to the highway and eliminated “at-grade intersections.” In place of those multiple intersections, at least in the immediate area of the property at issue in this appeal, the only access to Highway 54/400 was through “grade-separated interchanges” that were generally located several miles apart. The stated purpose of converting this section of highway to a controlled access roadway was to eliminate “ ‘conflict points,’ i.e., points where turning movements intersect on-coming traffic.” This elimination of conflict points was “intended to reduce accident rates and severity, and allow for the safe movement of increased traffic volumes at greater speed.”

Before the Highway Project, Tract 47 did not have direct access to Highway 54/400. Rather, Tract 47 had a driveway that connected to 130th Avenue. 130th Avenue then intersected with Highway 54/400 approximately .2 of a mile from Tract 47's driveway. From there, a driver could travel either east or west on Highway 54/400.

After the Highway Project's completion, Tract 47's driveway still accessed 130th Avenue. But, 130th Avenue no longer intersects with Highway 54/400. Consequently, a driver leaving Tract 47 would have to take several roads, including a new connector road built in the Highway Project, to get to Highway 54/400. Depending on whether the driver wants to travel east or west on Highway 54/400, the driver has to drive either approximately 6.8 miles or 3.8 miles, instead of just .2 miles.

The Landowners refer to the new paths of access to U.S. Highway 54/400 as “tortuous and circuitous.” They argue the economic value of Tract 47 at its highest and best use as a farm headquarters is diminished because of the removal of easy access to Highway 54/400. The Landowners further argue this highest and best use required consideration of Tract 47 as an economic unit with an adjacent property that was condemned for easements, Tract 38.

Relationship of Tract 47 and Tract 38

Tract 47 is a 2.77–acre parcel of land that was notched out of the southeast...