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269 Kan. 128

Carlson v. Westoff

Supreme Court of Kansas

Decided April 21, 2000

Supreme Court of Kansas · decided 2000-04-21

Cited by 2 later decisions — most recently March 2003

2 state decisions

Key passage — most relied on by later courts

““(a) Necessity. Private property shall not be taken or damaged for public use without just compensation. “(b) Taking entire tract. If the entire tract of land or interest in such land is taken, the measure of compensation is the fair market value of the property or interest at die time of dre taking. “(c) Partial taking. If only a part of a tract of land or interest is taken, the compensation and measure of damages is the difference between the fair market value of the entire property or interest immediately before the taking, and the value of that portion of the tract or interest remaining immediately after the taking. “(d) Factors to be considered. In ascertaining the amount of compensation and damages, the following nonexclusive list of factors shall be considered if such factors are shown to exist. Such factors are not to be considered as separate items of damages, but are to be considered only as they affect the total compensation and damage under the provisions of subsections (b) and (c) of this section. Such factors are: (1) The most advantageous use to which the property is reasonably adaptable. (2) Access to the property remaining. (3) Appearance of the property remaining, if appearance is an element of value in connection with any use for which the property is reasonably adaptable. (4) Productivity, convenience, use to be made of the property taken, or use of the property remaining. (5) View, ventilation and light, to the extent that they are beneficial attributes t”

quoted by 1 later decision, including Butler County Rural Water District No. 8 v. Yates

Relies on Searcy v. State Highway Commission · Mettee v. Urban Renewal Agency · Small v. Kemp

Good law ✅— No negative treatment on recordhow we know

Decided 2000-04-21

View the full empirical analysis of this case →

¶1The opinion of the court was delivered by

Six, J.:

¶2This is a condemnation case involving a partial taking under K.S.A. 26-513(c). The property owners, Howard and Barbara Westoff (the Westoffs), appeal from the district court’s additur of $2,000. The Kansas Department of Transportation (KDOT) is the condemnor. The jury determined the “after the taking” value of the Westoffs’ property to be outside the range of evidence. To conform the verdict to the evidence, the district court imposed an additur. The Westoffs request a new trial contending that additur is not an appropriate remedy.

¶3Our jurisdiction is under K.S.A. 20-3018(c), a transfer on our motion.

¶4*129The question is whether the district court erred in imposing an additur of $2,000. The answer is: “yes.” We reverse and remand for a new trial.

¶5FACTS

¶6KDOT acquired an easement through condemnation to use the Westoffs’ land for the construction of a new highway. The jury was instructed to determine the market value of the property immediately before and immediately after the taking. See K.S.A. 26-513(c). Both Howard and Barbara Westoff testified that the property was worth $75,000 before the taking and nothing after the taking (compensation $75,000). Their expert testified that the property was worth $60,000 before the taking and $5,000 after the taking (compensation $55,000). KDOT’s expert, however, testified that tire property was worth $25,000 before the taking and $18,000 after the taking (compensation $7,600).

¶7The jury found that the property was worth $26,000 before the taking and $20,000 after the taking, ($2,000 more than the highest “after the taking” value). The total award was $6,000. The Westoffs filed a Motion For New Trial, alleging that the jury’s finding did not fall within the range of the opinion testimony.

¶8The district court recognized that the jury’s findings were improper, noting that it should not have accepted the verdict. After taking the matter under advisement, the district court, over the Westoffs’ objection, imposed the $2,000 additur at issue here, thus awarding the Westoffs $8,000.

¶9DISCUSSION

¶10The Westoffs’ compensation is the difference between the value of the entire property immediately before the taking and the value of that portion of the tract remaining immediately after the taking. See K.S.A. 26-513(c). For the verdict to be upheld as within the range of the evidence, the jury’s findings as to “before” and “after” value must fall within the range of the opinion testimony. Mettee v. Kemp, 236 Kan. 781, Syl. ¶, 696 P.2d 947 (1985). K.S.A. 26-513(d) does not authorize a jury to make a finding as to “before” and “after” values outside the range of opinion evidence. Mettee, 236 Kan. at 789.

¶11*130Here the jury’s $20,000 finding of “after” value did not fall within the range of the opinion testimony. The opinion testimony established an “after” value of between $0 and $18,000. Under the law as stated in Mettee, the jury’s verdict was not supported by the evidence.

¶12The question remains whether the district court is required to grant a new trial or whether the court may impose an additur to bring the verdict within the testimony. KDOT characterizes the $2,000 additur as a remittitur. (The jury’s “after” value is reduced from $20,000 to $18,000 by the district court’s additur.) KDOT contends that we have allowed a remittitur in condemnation cases, citing Stewart v. Marland Pipe Line Co., 132 Kan. 725, 297 Pac. 708 (1931); Searcy v. State Highway Comm., 145 Kan. 709, 67 P.2d 534 (1937).

¶13Stewartand Searcypredate our holdings in Metteeand Small. Neither Stewartnor Searcyinvolved a verdict outside the range of the evidence. KDOT also cites Mettee v. Urban Renewal Agency, 219 Kan. 165, 547 P.2d 356 (1976). In Urban Renewal we reversed the district court’s ruling which gave the property owner a choice— a remittitur or a new trial. 219 Kan. at 170.

¶14Other jurisdictions have held that neither additur nor remittitur are appropriate in eminent domain actions. See Booras v. Iowa State Highway Commission, 207 N.W.2d 566, 570 (Iowa 1973); State Road Department of Florida v. Cox, 118 So. 2d 668, 669 (Fla. App. 1960). We agree.

¶15We have not expressly addressed the question of an additur in a partial taking condemnation case. However, in Small v. Kemp, 240 Kan. 113, 116, 727 P.2d 904 (1986), we reaffirmed our holding in Mettee, saying: “Where a jury award is not within the requirements of K.S.A. 26-513, the trial court must grant a new trial.” Mettee and Smallcontrol here. Neither additur nor remittitur is allowed. Our holding is consistent with the general nature of ad-ditur. See Dixon v. Prothro, 251 Kan. 767, 775, 840 P.2d491 (1992) (stating that additur is not favored under Kansas law).

¶16Reversed and remanded for a new trial.

Davis, J., not participating.
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