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Isely v. City of Wichita

January 25, 2008

GEORGE R. ISELY, AS TRUSTEE OF THE MILDRED L. ISELY TRUST, ET AL., APPELLANTS,
v.
CITY OF WICHITA, KANSAS, APPELLEE.



Appeal from Sedgwick District Court; DOUGLAS R. ROTH, judge.

SYLLABUS BY THE COURT

1. A landowner asserting a claim of inverse condemnation must prove not only that the landowner owns an interest in the real property but that the alleged condemner has taken all or a part of that interest without compensating the landowner.

2. Both the Fifth Amendment to the United States Constitution and Article 12, Section 4 of the Kansas Constitution guarantee payment for private property appropriated to public use. K.S.A. 26-513 also codifies these constitutional guarantees.

3. The constitutional requirement of just compensation for the taking of private property for public use is addressed to every sort of interest which the citizen may possess in the physical thing taken.

4. A landowner need not hold all of the sticks in the bundle of fee simple rights to establish a property interest under the Fifth Amendment. Under the facts of this case, present possessory rights were not necessary.

5. The paradigmatic taking requiring just compensation is a direct government appropriation or physical invasion of private property.

6. In the context of takings jurisprudence, the word "permanent" does not necessarily mean forever. A taking may be for a limited term. In the language of real property, what is "taken" is an estate for years, which is finite, as distinguished from the infinite term of an estate in fee simple absolute.

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

Reversed and remanded.

Before BUSER, P.J., KNUDSON, S.J., and BUKATY, S.J.

This is an inverse condemnation action brought by George R. Isely, as Trustee of the Mildred L. Isely Trust, et al. (Lessors), against the City of Wichita (City), regarding land owned by the Lessors and leased to Starr Holdings, L.L.C. (Lessee). The Lessors filed suit against the City seeking payment of just compensation as a result of the City's construction and maintenance of a roadway and utilities on the land pursuant to an easement granted by the Lessee. Both the Lessors and the City filed motions for summary judgment. The district court granted summary judgment in favor of the City, and the Lessors appeal. We reverse and remand.

Factual and Procedural Background

The Lessors are successors in interest to H.A. Loshbaugh and Vera M. Loshbaugh, who granted a 99-year lease to College Hill Development Corp., Inc. in 1959. The Lessee is successor in interest to this developer. The land totals about 52,700 square feet and is located on the southwest corner of Hillside and Central streets in Wichita.

On October 25, 2000, the Lessee signed a "Public Street And Utility Easement" which the parties stipulated "purports to grant the City a permanent right-of-way and easement for the purpose of construction and maintenance of a roadway and utilities along and under" the land. The easement covers about 8,000 square feet along the north and west sides of the land. There was no stated limit on the easement's duration. Following dedication of the easement, the City constructed ...


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