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April 13, 1990.

A.B. HUDSON and FAIRWAY OIL, INC., Appellants/Cross-appellees,
THE CITY OF SHAWNEE, KANSAS, A municipal corporation, Appellee/Cross-appellant.

The opinion of the court was delivered by

This is a condemnation case. A.B. Hudson and Fairway Oil, Inc., (landowners) appeal an award for the taking of permanent and temporary easements. The City of Shawnee (City) cross-appeals the trial court's pretrial ruling that the City acquired the right to deny access to the property during the entire two-year term of the temporary easement. This case again comes before us on a petition for rehearing. Landowners, in well-written briefs, seek modification of our recent decision Hudson v. City of Shawnee, 245 Kan. 221, 777 P.2d 800 (1989). The two grounds sought for the modification of our original opinion are issues urged originally. However, these issues were presented eloquently enough in the motion for rehearing to persuade this court to give them further consideration. The issues to be reconsidered are the uncompensated closing of the east entrance of the landowners' property on 75th Street under the police power during the pendency of the condemnation action, and the division of the I-35 highway improvement project and the 75th Street widening project into two projects, making the effect of the I-35 construction on traffic flow admissible evidence in the 75th Street case. This opinion repeats our original opinion with modifications on the issues reheard. The judgment of the district court is again affirmed.

The landowners own property in Shawnee, Kansas, upon which they operate a service station. The property is in the southwest quadrant of the intersection of 75th and Switzer Streets. Originally there were two driveways to 75th Street from the north of the station and one driveway to the east onto Switzer.

  The City filed a petition in eminent domain to acquire a five-foot-wide permanent easement along 75th to widen the street from a two-lane to a four-lane street. The City also requested a temporary construction easement ten feet wide along 75th and thirty feet wide along Switzer. The temporary easement encompassed the three driveways to the station.

[246 Kan. 398]


  The City's construction project was planned to occur at the same time as the Kansas Department of Transportation's project to widen 75th Street at the I-35 interchange and reconstruct the interchange so it would go over I-35 rather than under it. Both projects were designed to improve traffic flow; the City project was necessary to eliminate a bottleneck which would otherwise exist after the completion of the state project.

  The construction plans with the condemnation petition revealed the City intended to permanently close the east 75th Street driveway to the station. The landowners therefore moved for a pretrial finding on whether the permanent closing of the east 75th Street driveway could be considered in arriving at the compensation award.

  At the evidentiary hearing on the matter, evidence was presented that 75th Street could not be suitably widened without closing the east 75th Street driveway. The entrance had been unsafe to begin with because it was only 10 feet from the intersection. Cars using the driveway to go east on 75th join the traffic at the intersection and may not be able to align themselves properly and see the traffic signals. Cars traveling west on 75th Street and attempting to turn into the driveway block the intersection while waiting for eastbound traffic to clear. After construction, the driveway would be more dangerous because of increased traffic and because sidewalks to be constructed across 75th Street west of Switzer would cross into the driveway. Although there had been no plans to close the driveway for safety reasons before plans for construction began, it was decided in the final planning stages of construction it was necessary to close the east driveway for safety reasons. The evidence showed the remaining two driveways provided adequate ingress and egress to the station for traffic from any direction.

  The trial court ruled evidence of damages as a result of closure inadmissible. It found the permanent closing of the east driveway on 75th Street to be a proper exercise of the police power which did not substantially interfere with access.

  In response to a motion in limine by the City to determine the rights the City acquired by its petition for a temporary easement, the court ruled the City acquired the right to close all driveways to the station for two years. The court denied a later

[246 Kan. 399]

      motion in limine by the landowners to prohibit testimony concerning the construction of an overpass at 75th Street and I-35, the closure of 75th Street at that intersection, and its effect in reducing traffic to the landowners' property. The City thus introduced at trial newspaper articles to demonstrate public knowledge on the date of taking of the proposed construction work on 75th and I-35. The City's real estate expert estimated public knowledge would cause 75% of the normal 75th Street traffic to divert elsewhere. He thus concluded damages due to the temporary easement should be reduced by 75%.

  Evidence of damages ranged from $18,000 to $58,240. The experts testified the damages to be totally or primarily due to the two-year temporary easement. They based their damages for the temporary easement on the fact that the driveways to the property could be blocked for two years from the filing of the appraisers' report. The permanent easement was not considered to cause significant damage to the property in its use as a service station. The jury found total damages to be $27,500.

  The landowners appeal after the denial of their motion for a new trial. The City cross-appeals.

  Since this issue overlaps into all others, let us first consider the City's cross-appeal. The issue is whether the trial court erred in ruling as a matter of law that the City by its petition acquired the right to deny all access to and from the landowners' property for two years under the temporary construction easement.

  The City's petition defined the taking as follows:

  "a temporary easement for the purpose of surveying, excavating, filling, grading and all other purposes incidental to the construction of a street or sidewalk on the permanent right of way adjacent thereto substantially as shown on the `Plans for Street Improvement, 75th Street, City of Shawnee, Kansas', . . . filed with the City Clerk of the City of Shawnee. All areas disturbed are to be restored by replacement of sod or pavement to a condition as good as or better than before. No trees or improvements are to be damaged or removed excepting those indicated on the plans aforedescribed. No part of any building or structure, including any eaves, awnings or other overhanging attachment, either within or partly within said temporary easement, shall be damaged or removed unless indicated on the plans aforedescribed. Said temporary easement shall expire two (2) years from the date of the filing of the Appraisers' Report herein or ninety (90) days after completion and acceptance of the project by the City, whichever occurs first. The owners, tenants, lienholders and easement holders, their

[246 Kan. 400]

      heirs and assigns, may cultivate and fully use and enjoy the land within the construction easement, provided such use shall not interfere with the construction of the street." (Emphasis supplied.)

  The petition gives the City the right to use the temporary easement for two years from the filing of the appraisers' report. The alternate termination date is dependent upon a subjective decision by the City and thus provides no termination at all. The appraisers' report adopted this definition of the temporary easement.

  The property rights taken by the condemnor are to be determined by the language in the petition for eminent domain and the report of the appraisers. Sutton v. Frazier, 183 Kan. 33, 325 P.2d 338 (1958). The legal requirements for the content of the petition are simple, as provided by K.S.A. 26-502:
"A petition shall include allegations of (1) the authority for and the purpose of the taking; (2) a description of each lot, parcel or tract of land and the nature of the interest to be taken; (3) insofar as their interests are to be taken (a) the name of any owner and all lienholders of record, and (b) the name of any party in possession. Such petition shall be verified by affidavit. Upon the filing of such petition the court by order shall fix the time when the same will be taken up. No defect in form which does not impair substantial rights of the parties shall invalidate any proceeding."
  In determining damages for the taking of the interest in property, consideration is to be given to the fifteen factors listed in K.S.A. 26-513, including access.

  As noted earlier, the temporary easement encompassed all three driveways to the property. The trial court held the language of the petition gave the City the right to deny all access to the property for the entire two-year term of the easement. It thus held the landowners were entitled to compensation based on this right. The City argues compensation should be less because at least one driveway to the station remained open during the entire term of the easement.

  The law is clear that landowners are entitled to full compensation for the actual rights acquired by the condemnor, not the rights actually used. Hoy v. Kansas Turnpike Authority, 184 Kan. 70, 334 P.2d 315 (1959); Barcus v. City of Kansas City, 8 Kan. App. 2d 506, 661 P.2d 806 (1983). It is also clear ...

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