Printable Format26-201. Cities; authority to condemn; interest acquired; resolution, notice, ordinance; exercise of power. A city shall have the right to acquire by condemnation any interest in real property, including a fee simple title thereto, but cities shall not have the right to acquire a fee simple title to property condemned solely for street purposes. Whenever it shall be deemed necessary by the governing body of any city to appropriate private property for the use of the city for any purpose whatsoever, the governing body shall by resolution declare such necessity and authorize a survey and description of the land or interest to be condemned to be made by a licensed land surveyor or a professional engineer who is competent to conduct a land survey and filed with the city clerk. Such resolution shall be published once in the official city newspaper. Upon the filing of the survey and description of the land or interest to be condemned the governing body shall by ordinance authorize and provide for the acquisition of such land or interest, setting forth such condemnation, the interest to be taken and for what purpose the same is to be used. If in the opinion of the governing body any property is specially benefited by the proposed improvement such property shall be designated as the benefit district and the same shall be fixed by the ordinance authorizing and providing for the acquisition of the land or interest. The governing body, as soon as practicable after passage of the ordinance authorizing and providing for the appropriation of such land or interest and the fixing of the benefit district, if any is fixed, shall proceed to exercise the power of eminent domain in accordance with the eminent domain procedure act.
History: R.S. 1923, 26-201; L. 1963, ch. 234, § 71; L. 1967, ch. 211, § 1; L. 1972, ch. 147, § 1; L. 2006, ch. 192, § 10; July 1.
Source or prior law:
L. 1913, ch. 86, § 1; Revised, 1923.
Law Review and Bar Journal References:
This statute altered the law of eminent domain as it related to municipalities, Robert F. Bennett, 36 J.B.A.K. 169, 210 (1967).
Survey of Kansas law on real and personal property (1965-1969), 18 K.L.R. 427, 436 (1970).
"Legal Constraints on Diverting Water from Eastern Kansas to Western Kansas," John c. Peck, 30 K.L.R. 160, 175, 202 (1982).
"Legal Aspects of Water Storage in Federal Reservoirs in Kansas," John C. Peck, 32 K.L.R. 785 (1984).
Attorney General's Opinions:
Condemnation in cities; authority to condemn property which includes burial plot. 86-46.
Cities; authority to condemn private property for public use. 87-78.
City's authority to condemn public property by eminent domain. 91-51.
CASE ANNOTATIONS
[Actions Under Procedure Prior to K.S.A. 26-501 through 26-516]
1. Appeal from allowance of damages considered and held not error. In re Sidles, 125 Kan. 1, 262 P. 550.
2. Proceeding for condemnation held not to have been abandoned. State v. Nelson, 126 Kan. 1, 266 P. 107.
3. This and following sections cited in considering condemnation proceedings. State v. Nelson, 126 Kan. 1, 2, 266 P. 107.
4. Procedure for opening streets provided by this section. City of Wichita v. Wichita Union Terminal Rly. Co., 127 Kan. 855, 857, 275 P. 171.
5. Title acquired by city not limited to use for which property was condemned. Skelly Oil Co. v. Kelly, 134 Kan. 176, 178, 179, 5 P.2d 823,
6. Cited in holding K.S.A. 26-101 et seq. does not repeal K.S.A. 24-438 et seq. Brookings v. Riverside Drainage Dist., 135 Kan. 234, 236, 9 P.2d 656.
7. Condemnation ordinance held legislative and proper subject to referendum. State, ex rel., v. Jacobs, 135 Kan. 513, 514, 11 P.2d 739.
8. This and following sections construed in affirming appeal from commissioners award. Miltimore v. City of Augusta, 140 Kan. 520, 38 P.2d 675.
9. Cited in upholding abandonment of condemnation proceeding instituted under chapter 26, article 1. State Highway Comm. v. Phillips, 146 Kan. 78, 81, 69 P.2d 12.
10. Words "for any purpose whatsoever" construed; city, before taking property, must make order declaring appropriation necessary. Barker v. Kansas City, 146 Kan. 347, 348, 359, 361, 363, 365, 70 P.2d 5.
11. City has implied power to pass ordinance changing name of streets. Brown v. City of Topeka, 146 Kan. 974, 977, 74 P.2d 142.
12. Origin of act discussed. Glover v. State Highway Comm., 147 Kan. 279, 285, 77 P.2d 189.
13. Cited in considering elements of damages under 12-629. Loomis v. City of Augusta, 151 Kan. 343, 345, 99 P.2d 988.
14. Act authorized county to condemn under this article; procedure discussed and determined. Board of County Comm'rs v. Robb, 166 Kan. 122, 125, 136, 137, 199 P.2d 530.
15. Proceedings hereunder; lessee's right to compensation under oral lease determined. Miles v. City of Wichita, 175 Kan. 723, 724, 267 P.2d 943.
16. Mentioned; action to enjoin special assessment dismissed. Vandegrift v. City of Wichita, 176 Kan. 141, 142, 143, 269 P.2d 477.
17. Discussed in holding off-street parking act (K.S.A. 13-1388 through 13-1391) constitutional. State, ex rel., v. City of Topeka, 176 Kan. 240, 247, 270 P.2d 270.
18. Pleadings challenging validity of proceeding cannot be filed therein before appeal taken; history of law; statutes construed. State v. Boicourt Hunting Ass'n, 177 Kan. 637, 638, 641, 644, 646, 282 P.2d 395.
19. Proceedings hereunder; notice under K.S.A. 26-202 (L. 1937, ch. 227) held sufficient. Walker v. City of Hutchinson, 178 Kan. 263, 264, 265, 284 P.2d 1073. Reversed, 352 U.S. 112, 77 S. Ct. 200, 1 L. Ed. 2d 178.
20. Property acquired before proceedings commenced; mandamus; confession of judgment. Linden v. Board of Park Commissioners of Wichita, 178 Kan. 333, 335, 285 P.2d 1070.
21. Phrase "for the use of the city" considered. Dinges v. Board of County Commissioners, 179 Kan. 35, 41, 292 P.2d 706.
22. Opening statement must be within confines of pleading (dicta). Steck v. City of Wichita, 179 Kan. 305, 307, 308, 295 P.2d 1068.
23. Evidence that future residential development was highest and best use, not error. Steck v. City of Wichita, 179 Kan. 305, 310, 311, 295 P.2d 1068.
24. Effect of depositing award, admissibility of evidence as to value, and right to interest considered. Steck v. City of Wichita, 179 Kan. 305, 312, 313, 314, 295 P.2d 1068.
25. Condemnation procedure under urban renewal law not unconstitutional as condemning for private purposes. State, ex rel., v. Urban Renewal Agency of Kansas City, 179 Kan. 435, 437, 438, 296 P.2d 656.
26. Cited in discussing various eminent domain statutes (dissenting opinion). Moore v. Kansas Turnpike Authority, 181 Kan. 841, 849, 317 P.2d 384.
27. Mentioned in determining title ordinarily acquired by condemnation. Sutton v. Frazier, 183 Kan. 33, 42, 325 P.2d 338.
28. Article applies to condemnation by state forestry, fish and game commission. State v. Boicourt Hunting Ass'n, 183 Kan. 187, 189, 326 P.2d 277.
29. Condemnation proceeding held exercise of governmental not proprietary function; abandonment, no liability. Weast v. Budd, 186 Kan. 249, 252, 253, 349 P.2d 912.
30. Street widening; benefit district omitted benefited properties; unreasonable; invalid. Bowers v. Gardner, 187 Kan. 720, 721, 723, 725, 727, 360 P.2d 17.
31. Power of city to open street through railway property determined. City of Norton v. Lowden, 84 F.2d 663, 664.
32. Cited; property acquired by city for airport purposes held not abandoned. Christman v. City of Wichita, Kan., 209 F.2d 639, 640.
33. Notice provisions of section K.S.A. 26-202 (L. 1937, ch. 227) sufficient; due process. Collins v. City of Wichita, Kansas, 225 F.2d 132, 133, 134. Judgment not set aside although judicial change in law (Walker v. City of Hutchinson (352 U.S. 112, 77 S. Ct. 200)) after entry. Collins v. City of Wichita, Kansas, 254 F.2d 837, 838.
34. Mentioned in opinion holding condemnation proceedings valid based upon conditions at time of taking. Soden v. State Highway Commission, 192 Kan. 241, 242, 243, 387 P.2d 182.
35. School district entitled to equivalent necessary replacement for buildings and land taken. City of Wichita v. Unified School District No. 259, 201 Kan. 110, 439 P.2d 162.
36. This and succeeding sections cited in construing section (K.S.A. 12-811) concerning purchase of corporate utility plant on expiration of franchise. City of Kiowa v. Central Telephone & Utilities Corporation, 213 Kan. 169, 172, 515 P.2d 795.
37. Entrance to service station closed off in proceedings hereunder; access rights taken; distinguished from controlled access facilities acquired under K.S.A. 68-1901 et seq. McCall Service Stations, Inc. v. City of Overland Park, 215 Kan. 390, 391, 394, 524 P.2d 1165.
38. Petition filed hereunder; award held not based on improper evidence; K.S.A. 26-513 applied. Rostine v. City of Hutchinson, 219 Kan. 320, 321, 548 P.2d 756.
39. Dismissal of condemnation action by city after purchase of property by agreement with owner does not constitute abandonment permitting defendant lessee to recover reasonable expenses in defense of action. City of Westwood v. M & M Oil Co., 6 Kan. App. 2d 48, 626 P.2d 817.
40. District court without jurisdiction to enlarge appeal period of 26-508. City of Kansas City v. Crestmoore Downs, Inc., 7 Kan. App. 2d 515, 644 P.2d 494 (1982).
41. Fee simple taking for controlled-access highway right-of-way and related uses lawful despite definition in K.S.A. 12-6a01(g). Murray v. Kansas Dept. of Transportation, 239 Kan. 25, 27, 716 P.2d 540 (1986).
42. Exercise of power of eminent domain or payment of compensation under inverse condemnation discussed. Mid-America Pipeline Co. v. Lario Enterprises, 716 F. Supp. 511, 517 (1989).
43. Administrative ordinance not subject to initiative and referendum; principles discussed whether ordinance administrative or legislative. McAlister v. City of Fairway, 289 Kan. 391, 212 P.3d 184 (2009).