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Estate of Kirkpatrick v. City of Olathe

March 7, 2008

ESTATE OF ARCHIE KIRKPATRICK, APPELLEE,
v.
THE CITY OF OLATHE, KANSAS, APPELLANT, AND COOK, FLATT & STROBEL, ENGINEERS, P.A., DEFENDANT.



Appeal from Johnson District Court; KEVIN P. MORIARTY, judge.

SYLLABUS BY THE COURT

1. Whether there has been a compensable taking to support an inverse condemnation claim is a question of law requiring de novo review.

2. The Fifth Amendment to the United States Constitution prohibits government from taking private property for public use without paying just compensation to the owner. The Fifth Amendment prohibition applies to the states through the Due Process Clause of the Fourteenth Amendment. Kansas has codified this prohibition at K.S.A. 26-513(a), with language that private property shall not be taken or damaged for public use without just compensation.

3. A claim of condemnation does not extend to cases where land is not actually taken but is only indirectly or consequentially damaged. There is a great difference between intentional taking of land in the exercise of governmental power and injury resulting to land as a consequence therefrom. A consequential injury is not a taking of private property for public use within the meaning of the Fifth Amendment.

4. A taking has been defined by our Supreme Court as acquiring of possession as well as the right of possession and control of tangible property to the exclusion of the former owner.

5. A claim of inverse condemnation does not lie unless there is a taking as defined by our Supreme Court. Damaging an adjoining property may constitute a tort but it is not a compensable taking unless the damage was necessary to the completion of the public project.

6. The right to quiet enjoyment is not a recognized property right, but is either recognized as a personal right that can be harmed by a nuisance, or as a right based on contract.

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

Reversed.

Before GREEN, P.J., GREENE and LEBEN, JJ.

The City of Olathe (the City) appeals the district court's judgment on a claim of inverse condemnation in favor of the Estate of Archie Kirkpatrick, arguing that its actions did not constitute a compensable taking of the Estate's property. We agree and reverse the district court.

Factual and Procedural Background

Archie Kirkpatrick owned and resided in property that sits on the northwest corner of the intersection at Ridgeview Road and Sheridan Avenue when the City approved a plan to improve that intersection with the construction of a roundabout. As part of the intersection improvement, the City took by eminent domain 355 square feet of Kirkpatrick's property for a permanent road right-of-way and 426 square feet for a temporary construction easement. Kirkpatrick did not appeal the compensation awarded in the eminent domain proceeding.

The City began construction of the roundabout in early 2000 and completed it in July 2001. According to the district court, the City became aware of "potential drainage problems" soon after it began construction and concluded the water problems would subside after construction was complete. In late June 2001, a friend of Kirkpatrick's, excavated near the house to determine the cause of the basement water problems at Kirkpatrick's residence. During excavation, DuVall noticed that the hole he dug was dry from the surface down 4 feet, but from there, wet to the bottom of the approximately 9-foot hole. DuVall installed a second sump pump but apparently did not fix the basement water problems, and water continued to enter the house after it rained. Kirkpatrick hired the May Development Company (May) to do additional foundation repair to his house in the summer of 2003. Over the course of the summer, May installed another sump pump in the house, jacked up the house, and installed piers and steel supports along the back foundation. During early August 2003, the basement floor cracked.

In September 2003, Kirkpatrick filed a claim under the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq., against the City. Kirkpatrick alleged the City had damaged or taken his property "due to [the] change of grade or disruption of natural underground barriers as a result of the construction of public improvements located at the intersection of Ridgeview Road and Sheridan Avenue . . . ." Because the City did not respond to Kirkpatrick's claim within 120 days, Kirkpatrick filed his petition against the City on January 21, 2004, and later amended to include the project engineer, the construction contractor, and the project inspector as defendants after these parties were brought in through third-party actions. After Kirkpatrick's death in September 2005, Kirkpatrick's estate (Kirkpatrick or Estate) was substituted as plaintiff.

The City filed two summary judgment motions in which it argued that it was immune from liability for the tort claims under the KTCA and that the property Kirkpatrick alleged was taken without compensation was acquired in the City's condemnation proceeding. It does not appear that it ruled on the first summary judgment motion, but the district court denied the second motion. The district court rejected the City's second motion for summary judgment after concluding that whether the City's diversion of groundwater into Kirkpatrick's property was a natural consequence of the improvement or resulted from a negligent deviation from the approved design was a substantial material fact that precluded summary judgment.

The court later held a bench trial on Kirkpatrick's action. In its journal entry of judgment, the district court concluded that the City conformed to the necessary standard of care in designing the roundabout. Further, the court concluded that no party had negligently deviated from the approved plan, and thus no party negligently caused damage to Kirkpatrick's property. The court then analyzed the inverse condemnation claim and concluded that the City partially took Kirkpatrick's property by damaging ...


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