State Highway Commission v. Lee

• Decision Date: 15 May 1971
• Docket Number: No. 45968,45968
• Parties: The STATE HIGHWAY COMMISSION of Kansas, Appellant, v. H. Alan LEE et al., Appellees.
• Court: Kansas Supreme Court

Page 310

485 P.2d 310

207 Kan. 284

The STATE HIGHWAY COMMISSION of Kansas, Appellant, v. H. Alan LEE et al., Appellees.

No. 45968.

Supreme Court of Kansas.

May 15, 1971.

Rehearing Denied June 16, 1971.

Syllabus by the Court

1. Under the new procedural act in eminent domain proceedings (L.1963, ch.

234) an appeal taken from the award in a condemnation action shall be docketed as a civil action in the district court and tried as any other civil action. (K.S.A.1970 Supp. 26-508.)

2. The new code of civil procedure incorporated Article 4, which is the uniform code of evidence, and the code of evidence is thereby made applicable to the trial of condemnation actions.

3. Now, under the new rules of evidence (K.S.A. 60-401, et seq.) an expert land appraisal witness, on direct examination, may in a condemnation action testify as to the purchase price of specific tracts of neighboring land, provided the evidence is relevant.

4. Under K.S.A. 60-407, all evidence is admissible if it is relevant to the issue being investigated. This provision has abolished the exclusionary rules of evidence existing in eminent domain proceedings prior to the passage of the new code of civil procedure.

5. Evidence of the price paid for condemned real property on a sale prior to the proceedings in which condemnation is sought is generally admissible in the trial of such proceedings, where the sale is bona fide, voluntary, not too remote in time, and if the conditions of the property and surroundings are sufficiently similar to those on the date of the taking. Whether such evidence is relevant depends upon a determination of the foregoing factors which lie within the trial court's discretionary powers.

6. Where the trial court determines that the purchase price paid for condemned property is so remote in time as to be irrelevant because of changed economic conditions and surroundings (applying the rule in Syl. 5), the determination will not be set aside absent a showing that the trial court abused the exercise of its power of discretion.

7. In the trial of a condemnation action the trial judge knows the community, knows the areas of real property development, and is able to take judicial notice of expanding city limits.

8. A landowner is a competent witness in a condemnation action to testify as to the value of his property.

9. Once a witness has qualified as an expert land appraisal witness in a condemnation action, the court cannot regulate the factors he uses or the mental process by which he arrives at his conclusion. These matters can only be challenged by cross-examination testing the witness' credibility.

10. The foregoing syllabus ( 9) is qualified by the proviso that the responsibility of defining the extent of compensable rights in a condemnation action is in the courts, and if it is established that value testimony was based on noncompensable items or the credibility of the testimony is otherwise destroyed, the testimony should be stricken in response to a proper motion.

11. The appellant in a condemnation action is bound by the theory upon which the case was submitted to the trial court with the appellant's acquiescence.

12. Expert real estate appraisal witnesses recognize three generally accepted approaches used by appraisers in valuing real property: (a) The market data approach which is based upon what comparable properties had sold for; (b) the depreciated replacement cost or cost approach which is based upon what it would cost to acquire the land and to build equivalent improvements less depreciation; and (c) the income approach or capitalization of income which is based upon what the property is producing or is capable of producing in income.

13. In a condemnation action the income approach to the appraisal of land taken by condemnation is the best method of determining value, when it is a known factor and there are no other comparable real estate sales available.

14. Expert land appraisal witnesses in a condemnation proceeding acknowledge the existence of, and employ, the development 15. The development approach in valuing suburban land imminently suited for subdivision and development begins with the selling price of the lots into which the acreage may be divided, which is then reduced by the developmental costs and discount factors more particularly described in the opinion. Where only a part of the owners' land is taken, the compensation and measure of damages are the difference between the value of the entire property based upon such calculations, and the value of that portion of the tract remaining immediately after the taking based upon such calculations.

approach, also known as the income approach, in valuing suburban land imminently suited for subdivision into homesites and development.

16. Photographs and drawings are admissible in a condemnation action to show a possible scheme of development of land and its best and most profitable use, where it appears that the likelihood of demand for the property for such purpose is sufficient to affect the market value.

Dana B. Dodderidge, Topeka, argued the cause, and Ronald D. Innes, of Everett & Innes, Manhattan, was with him on the brief for appellant.

Larry B. McGrath, Manhattan, and Charles D. Green, of Arthur & Green, Manhattan, argued the cause and was on the brief for appellees.

SCHROEDER, Justice:

This is an appeal by the State Highway Commission in an eminent domain proceeding wherein it acquired a right-of-way for highway purposes on two tracts of land owned by the appellees at Manhattan, Kansas.

The points asserted on appeal are confined to rulings of the trial court on the admission and exclusion of evidence in proof of damages in an eminent domain proceeding.

On the 24th day of April, 1968, the State Highway Commission of Kansas (appellant) filed a petition in the district court of Riley County, Kansas, to acquire certain parcels of land in an area northwest of the city of Manhattan for highway right-of-way purposes in order to construct a cloverleaf interchange at the intersection of existing K-113 highway and Kimball Avenue. Included in the parcels taken were parts of two separate tracts owned by H. Alan Lee and his brother, Robert V. Lee, and their respective wives (appellees). One tract, hereafter called the 'east tract,' was located in the southeast quadrant of the above intersection and contained 10.10 acres before the taking. The other tract, hereafter called the 'west tract,' was located in the southwest quadrant of the same intersection and contained 16.80 acres before the taking. In the condemnation 4.67 acres were taken from the east tract, leaving a remainder of 5.43 acres, and 4.32 acres were taken from the west thract, leaving a remainder of 12.48 acres.

The court-appointed appraisers awarded $31,000 compensation for the taking in the east tract and $19,575 compensation for the taking in the west tract, making a total of $50,575.

The landowners appealed from the awards on both tracts. Thereafter, the court consolidated the appeals on the two tracts for trial, and the parties stipulated the tracts would be treated as separate units for valuation purposes, but the awards would be added to obtain the awards Trial to a jury on March 19 and 20, 1969, resulted in a verdict for the landowners of $85,750.

At the pretrial conference the parties stipulated the date of the taking was June 20, 1968.

Direct access was denied to K-113 highway both before and after the taking. Various exhibits, consisting of maps of the city and the northwest part, including subdivision plats of the two tracts, were admitted in evidence without objection. These exhibits disclosed the two tracts to At the time of the taking both tracts were zoned residential but had not been annexed to the city. The city limits bordered on three sides of the tracts, all except the north. On the date of the taking there was no recorded plat on either tract, and there were no improvements on either tract, merely grass and trees. All expert witnesses agreed the tracts were ideal for residential construction, and this was the highest and best use for the property.

be irregular in shape, with even more irregularity caused by the taking of the parcels condemned.

An odd-shaped unimproved tract adjacent to the north part of the east side of the east tract was owned by the First Christian Church. The west tract is bounded on the west by Wreath Avenue which runs in a north-south direction. Just west of Wreath Avenue is Ci-Co (meaning City-County) Park. South of the west tract and adjacent thereto is a 12-acre undeveloped tract owned by the Lundin brothers who are developers in this area. South of the Lundin tract is a new area vocational technical school.

The east tract is bounded on the east by a residential area which was platted and developed by the Lee brothers, appellees herein. It consists of eight additions which had already been platted in the Howenstine Addition. All additions conformed to the master plan developed by the Lees in 1959. Schwab and Eaton, consulting engineers, prepared the master plan. On January 28, 1968, approximately five months before the taking herein, the Lees went before the county planning commission with Howenstine Addition No. 9, the east tract here in question, and were denied permission to plat the tract which conformed to the 1959 master plan. Platting was denied solely because the state was planning to take more land for a cloverleaf at the intersection here in question. Never had the landowners been refused, nor had they had any trouble of any type in having their previous plats accepted. At the time of taking the Lees were building in Howenstine Addition No. 7. It was the practice of the appellees to build houses and sell the house and lot in a package deal. They seldom sold unimproved lots.

The Lees purchased the two tracts here in question in January, 1966, for $3,600 per acre, and since that time have made no...