Eminent Domain

Eminent domain is, in general, the inherent power of a governmental entity to take private property and convert it to public use upon payment of just compensation. Kansas has the power to exercise eminent domain to take private property for public use. The power of eminent domain belongs exclusively to the Legislative branch and to those entities or individuals authorized by statute to exercise the power. The Legislature can delegate that power to certain public and private entities through the authority granted in more than 200 statutes, including, but not limited to, those listed below:

Entity	Statutory Authority
Airport Authorities	KSA 27-321, 27-331
Airports	KSA 3-115, 3-123
State Board of Regents	KSA 76-147
Cities	KSA 26-201, 12-808a, 12-845, 12-1736
Community Colleges	KSA 71-201
Counties	KSA 19-101, 19-101a, 19-1561
Drainage Districts	KSA 24-108, 24-204, 24-407, 24-512
Fire Districts	KSA 19-3601a, 19-3616
Industrial Districts	KSA 19-3808
Irrigation Districts	KSA 42-705
Municipal Energy Agencies	KSA 12-895
Oil and Gas Entities	KSA 55-1003, 55-1204
Railroad Entities	KSA 66-501
School Districts	KSA 72-1144
Secretary of Health and Environment	KSA 49-433
Secretary of Transportation	KSA 68-413, 68-423e
Secretary of Wildlife and Parks	KSA 32-840
Telecom Providers	KSA 17-1903
Kansas Turnpike Authority	KSA 68-2006
Water Districts	KSA 19-3502
Watershed Districts	KSA 24-1209

Private Corporations

Certain private corporations serving a public interest for public use, such as public utilities holding a Certificate of Convenience and Necessity issued by the Kansas Corporation Commission, may also exercise the power of eminent domain under KSA 17-618.

Prohibitions to Eminent Domain

Exercising the power of eminent domain to transfer property to a private citizen under KSA 26-501a is generally prohibited, but there are exceptions to that under KSA 26-501b, which allows a public utility to take property only to the extent that such property will be used for the operation of facilities necessary for the provision of the utility’s services. Under this exception, “public utility” is defined by KSA 66-104 as any entity that is engaged in the generation, transmission, or distribution of electricity.

KSA 66-405(g) expressly excludes the siting or placement of wind-powered electrical generators or turbines, including towers, in the definition of “public utility” for the purposes of eminent domain.

Procedures to Exercise Eminent Domain

Procedures to exercise eminent domain are conducted pursuant to the Eminent Domain Procedure Act in KSA 26-501 et seq. Procedures include filing a petition, a court finding that the entity possesses the lawful power of eminent domain and the taking is necessary for the corporate purpose of the entity, and just compensation based on fair market value must be provided for the taking.

KSA 12-1306 was amended by 2006 Sub. for SB 323 to require a survey by a licensed land surveyor or a professional engineer who is competent to conduct a land survey for every use of eminent domain by a city when the purchase price cannot be agreed upon with the owner of the property.