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Schuck v. Rural Telephone Service Co.

April 4, 2008

LENUS SCHUCK, APPELLANT,
v.
RURAL TELEPHONE SERVICE CO., INC., APPELLEE.



Appeal from Norton district court; GLENN D. SCHIFFNER, judge.

SYLLABUS BY THE COURT

1. The movant has the burden of proof in an injunction action. In order to receive temporary injunctive relief, the movant must show a substantial likelihood of prevailing on the merits; there is a reasonable probability of irreparable future injury to the movant; an action at law will not provide an adequate remedy; the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and the injunction, if issued, will not be adverse to the public interest.

2. The State of Kansas has an inherent power of eminent domain which the legislature may delegate to any public authority to exercise as directed.

3. A petition seeking eminent domain must demonstrate that the plaintiff has the power of eminent domain and that the taking is necessary to the lawful corporate purposes of the plaintiff. K.S.A. 2007 Supp. 26-504.

4. The condemnee has no right to litigate outside issues in eminent domain proceedings. The right to exercise the power of eminent domain and to determine other issues such as the necessity and the extent of the taking may only be litigated in a separate civil action, usually in an action for injunction.

5. A Kansas public utility possessing the power of eminent domain is vested with reasonable discretion to determine the necessity for the taking of land for its lawful corporate purposes. The public utility's discretion will not be disturbed on judicial review unless fraud, bad faith, or an abuse of discretion is shown.

6. A determination of whether a public utility possessing the power of eminent domain abused its discretion in determining the necessity for taking land depends on the evidence presented to the district court.

7. Constructive fraud is a breach of a legal or equitable duty which, irrespective of moral guilt, the law declares fraudulent because of its tendency to deceive others or violate a confidence, and neither actual dishonesty nor purpose or intent to deceive is necessary. A party alleging constructive fraud must prove the existence of a confidential relationship and a betrayal of this confidence or a breach of a duty imposed by the relationship and must also prove that the party charged with fraud has a legal or equitable duty to communicate, with respect to which the party could not be innocently silent.

8. An inverse condemnation proceeding is initiated by the party having a property interest and is available when private property has been taken for public use without the initiation of formal condemnation proceedings by the governmental taker.

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

Affirmed.

In this appeal from an eminent domain proceeding, Lenus Schuck seeks to enjoin Rural Telephone Service Company, Inc. (Rural Telephone) from obtaining an easement on his land. After mistakenly burying a telecommunication cable outside an easement that it had negotiated with Schuck, Rural Telephone filed a petition for eminent domain seeking an additional easement that would allow it to keep the cable in its present location. Schuck appeals from the district court's denial of his action seeking to enjoin Rural Telephone from proceeding with its eminent domain action.

FACTS

Schuck has used the property at issue partially as cropland and partially as pasture. In 1991 and 1998, Rural Telephone, Schuck, and Schuck's parents, his predecessors in title, negotiated easements for Rural Telephone to bury cables across Schuck's property. In exchange for both easements, Rural Telephone agreed to pay Schuck $1 per rod for a total of $750 and to reimburse Schuck for any crop damage.

In 2002, the Kansas Department of Transportation (KDOT) notified Rural Telephone, a Kansas telephone public utility, of its plans for construction work on a highway in Norton County, Kansas. Before the construction project could begin, Rural Telephone had to bury a new telecommunications cable along the highway to replace the telecommunications cable located in the construction zone. Rural Telephone determined where it had to place the cable and staked the property pursuant to "staking sheets." Rural ...


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