Daily Development for
Thursday, June 26, 1997

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

EMINENT DOMAIN; ALLOCATION OF AWARD; EASEMENTS: A condemning authority can only take so much property as is necessary for the accomplishment of its purposes, and if the condemning authority takes only an easement, then the holder of the easement is the only party entitled to a condemnation award.

In the Matter of the Acquisition of Land by Eminent Domain, Kansas Gas and Electric Company, v. Will Investments, Inc., 928 P.2d 73 (Kan. 1996).

SAD, a landowner, intended to subdivide its property and sell lots at public auction. At the same time Kansas Gas & Electric (KG&E) expressed its desire to buy an easement across a piece of the property. When SAD and KG&E could not reach an agreement on a voluntary sale, SAD granted a right-of-way to Will Investments, Inc. to "erect, install and maintain electric communication lines." Will paid for the easement, but gave SAD the right to repurchase it.

Aghakani bought one of the lots subject to Will's right-of-way. Will then reconveyed the right-of-way to SAD, and KG&E commenced an action to acquire the right- of-way by condemnation. In an effort to get the condemnation award, Aghakani contended that the right-of-way in favor of Will was illegal because it contemplated an unpermitted erection of electric transmission lines by a private party instead of the utility. Noting that there had been no performance by Will of any illegal act, the court dismissed that claim.

Aghakani contended that neither SAD nor Will had cognizable rights because neither could use the right-of-way for the purpose for which it was granted. The court also dismissed this claim because there was no prohibition on the transfer of a right to an entity that could use it. Finally, Aghakani said there should be an allocation between the easement that was taken and his fee. The court finally also dismissed this claim because the condemning authority only had the power to take so much of the property as was necessary for its purposes, and the fee interest was not necessary for its purposes.

Note: SAD used a clever plan to avoid the impact of the taking on its proposed auction. It not only side-stepped the anticipated diminished value of the parcels subject to an easement, but it also kept the value of the condemnation award for itself.

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