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86401 -- Nat'l Compressed Steel Corp. V. Unified Gov't of Wyandotte County/Kansas City -- Lockett -- Kansas Supreme Court

IN THE SUPREME COURT OF THE STATE OF KANSAS No. 86,401 NATIONAL COMPRESSED STEEL CORPORATION, Appellant, v. THE UNIFIED GOVERNMENT OF WYANDOTTE COUNTY/KANSAS CITY, KANSAS, Appellee. SYLLABUS BY THE COURT 1. Eminent domain is the right and power of government or lawfully designated authority to take private property for public use without the owner's consent upon payment of just compensation. The right is an inherent power of the sovereign and comes into being with the establishment of government and continues as long as the government endures, but its exercise may be limited by the Constitution. 2. An injunction is an order to do or refrain from doing a particular act. K.S.A. 60-901. An injunction is an equitable remedy designed to prevent irreparable injury by prohibiting or commanding certain acts. Injunction is not appropriate if a remedy at law can furnish the injured party with the full relief to which he or she is entitled. 3. To obtain injunctive relief, the movant must show: (1) there is a reasonable probability of irreparable future injury to the movant; (2) an action at law will not provide an adequate remedy; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) the injunction, if issued, would not be adverse to the public interest. 4. Inverse condemnation is an action or eminent domain proceeding initiated by the property owners rather than the condemner and has been deemed to be available where private property has been actually taken for public use without formal condemnation proceedings and where it appears that there is no intention or willingness of the taker to bring such proceedings. 5. The interpretation of a statute is a question of law over which this court's review is unlimited. This court is not bound by the district court's interpretation of a statute. A statute which confers the right to exercise the power of eminent domain is to be strictly construed in the light of the objectives and the purposes sought to be attained by its enactment. 6. Under the facts of this case, Unified Government's purpose for environmental testing is not to correct an environmental problem or to protect the public from groundwater pollution but to determine the economic viability of the condemnation project. Subsoil testing is beyond the scope of examination authorized by K.S.A. 26-512. Appeal from Wyandotte district court; PHILIP L. SIEVE, judge. Opinion filed January 25, 2002. Reversed. Don R. Lolli, of Swanson Midgley, LLC, of Kansas City, Missouri, argued the cause, and Robert R. Bartunek and Heather A. Jones, of the same firm, and Charles D. Kugler, of Kugler & Dickerson, of Kansas City, were with him on the briefs for appellant. Timothy P. Orrick, of Parkinson, Foth & Orrick, L.L.P., of Lenexa, argued the cause and was on the brief for appellee. The opinion of the court was delivered by

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86401 -- Nat'l Compressed Steel Corp. V. Unified Gov't of Wyandotte County/Kansas City -- Lockett -- Kansas Supreme Court

LOCKETT, J.: National Compressed Steel Corporation (National) sought to enjoin the Unified Government of Wyandotte County/Kansas City, Kansas, (Unified Government) from undertaking an environmental examination of National's property in conjunction with a pending eminent domain action the Unified Government initiated to acquire real property owned by National. The district court denied National's petition for a permanent injunction. National appeals, claiming (1) the district court erred in denying its petition for a permanent injunction, and (2) it was inappropriate for the same district judge to sit in both the condemnation proceeding and the associated but independent petition for injunction. National, a metals processing facility, owns eight tracks of land located in Kansas City, Wyandotte County, Kansas. National's customers include city municipalities such as Kansas City, Missouri, and Kansas City, Kansas, and other customers, such as Proctor & Gamble, General Motors, and Colgate. The Unified Government is a chartered municipal government pursuant to the constitution and laws of Kansas. The Unified Government filed the eminent domain proceeding on April 29, 1999, in the district court of Wyandotte County. On June 2, 1999, the Unified Government filed a motion for an order to allow entry upon National's land to perform extensive environmental testing. National objected, contending that the statutory authority to enter upon its property and make examinations in an eminent domain proceeding did not include the right to perform the extensive environmental testing contemplated by the Unified Government. The district court disagreed and issued an order allowing the Unified Government to enter National's property to perform environmental testing prior to acquiring any interest in National's property, without requiring the Unified Government to acquire an easement for the environmental testing or to pay compensation for use of National's land to perform the environmental testing. National moved for reconsideration of the district court's order. In the motion, National renewed its objection based on lack of statutory authority to conduct environmental testing. The motion further contended that (1) the district judge in an original eminent domain proceeding sits in an administrative, not judicial, capacity and, therefore, lacks subject matter jurisdiction to determine the nature and extent of a condemner's powers, to interpret statutes regarding a condemner's powers, and to order environmental testing; (2) environmental testing without condemnation of an easement is a taking without due process of law; and (3) ordering environmental testing without just compensation, notice, and opportunity for the landowner to be heard is a government taking of private property without due process of law. The district court denied National's motion to reconsider. National filed an application with the Kansas Court of Appeals to take an interlocutory appeal from the district court's order to allow environmental testing. The application was denied by the Court of Appeals without opinion. National then filed with this court a petition for discretionary review of the Court of Appeals' order denying interlocutory appeal. The petition was denied without opinion. The matter proceeded in the district court. A hearing in the eminent domain proceeding was held on February 4, 2000. The Unified Government moved for immediate environmental testing of National's property for soil and groundwater pollution. The extensive environmental testing the Unified Government desires to undertake is described in a 111-page work plan with attachments prepared by Browning & Associates, Inc., dated September 7, 1999. The plan indicates the Unified Government proposed to drill 12 soil borings to a depth of 5 feet below groundwater level. It was estimated that the soil borings will be drilled to a depth of 20 to 25 feet below the ground surface. Eight of the borings will be converted to temporary monitoring wells to collect groundwater samples. The monitoring wells will be constructed with threaded connection, 1-inch ID, Schedule 40 PVC pipe capped at the bottom. The well screen will consist of 0.010 inch slots. A graded, clean cilica sand will be placed in the annulus of the screened interval of each well. A 2-foot bentonite pellet seal will be placed above the sand packing and a flush mount steel protective cover will be concreted into place. Each well will be protected with a locking cap. Soil and groundwater samples will be collected from each location. Monitoring wells with sufficient recharge will be purged by removing a minimum of three well volumes. Monitoring wells that do not recharge sufficiently will be purged until no additional groundwater can be collected. The soil samples will be continuously collected during the drilling operation by driving a split spoon sampler with a 140 lb. hammer. At least three, but not more than four, samples will be collected from each drilling location: the sample at the interface between the fill soil and the native soil, the sample directly above the groundwater level measured at the time

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86401 -- Nat'l Compressed Steel Corp. V. Unified Gov't of Wyandotte County/Kansas City -- Lockett -- Kansas Supreme Court

of the drilling, and the sample from the bottom of the boring. Auger cuttings will be collected and stored in sealed drums at the site. If sample results indicate that there is no soil contamination, the auger cuttings will be spread out on the site. Water obtained from development and purging will be poured onto the ground to permeate into the soil at the site if the water is not contaminated. If the soil and/or water is contaminated, then disposal options will be explored. Bore holes not covered by permanent/temporary wells will be filled with either bentonite or a sand-cement mixture. The district court granted the Unified Government's motion. Prior to the February 4, 2000, eminent domain hearing, National filed a petition for a temporary restraining order, preliminary injunction, and permanent injunction regarding environmental testing on its property. The action was assigned to Division 2 of the Wyandotte District Court but, pursuant to local court rules, the action was reassigned to Division 1, where the eminent domain proceeding was assigned and pending. The Unified Government moved to dismiss the injunction action. The motion to dismiss was denied. The parties then agreed that the original eminent domain proceeding would be stayed pending disposition of the pending injunction action. The district court eventually denied National's request for injunctive relief from the environmental testing. The Unified Government has not yet condemned an easement on National's property for the purpose of performing the environmental testing and has not yet performed invasive environmental testing on National's property. Improper Assignment of Action National contends that it was inappropriate for the same district judge to determine both the condemnation proceeding and the associated but independent petition for injunction because the judge was required to review his own orders. National argues such action is in contravention of the checks and balances contemplated in Kansas law. Supreme Court Rule 107 (2001 Kan. Ct. R. Annot. 152) provides, in part: "In every judicial district the Supreme Court shall designate an administrative judge who shall have general control over the assignment of cases within said district under supervision of the Supreme Court. Assignment of cases shall be designed to distribute as equally as is reasonably possible the judicial work of the district. The administrative judge of each district shall be responsible for and have general supervisory authority over the clerical and administrative functions of the court. .... "(b) Trial Court Case Assignment. Cases shall be assigned under the supervision of the administrative judge. Under his supervision, the business of the court shall be apportioned among the trial judges as equally as possible and he shall reassign cases as necessity requires. He shall provide for the assignment of cases to any special division established in the court. A judge to whom a case is assigned shall accept that case unless he is disqualified or the interests of justice require that the case not be heard by that judge." The Rules of Court for the 29th Judicial District of Kansas, Wyandotte County, provide that "[i]f there is another case or cases pending between the parties for the same cause, or if companion cases are filed, all cases shall be assigned to the division having the lowest case number." Rule No. 3, Assignment of Cases. The courts' rules provide for broad discretion on the part of the chief judge in the assignment of cases and provide for judicial economy in the assignment of cases. Further, the two cases, although they include the same parties, involve different legal questions and theories. Questions regarding the condemner's power of eminent domain and the extent of restrictions on the condemner's power cannot be presented in the eminent domain action; therefore, National sought to raise these issues in its injunction action, a proceeding separate from the eminent domain proceeding. The fact that the same judge was assigned both cases did not create a conflict and did not require the judge to review his own orders. Use of Injunction Procedure Eminent domain is the right and power of government or lawfully designated authority to take private property for public use without the owner's consent upon payment of just compensation. The right is an inherent power of the

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86401 -- Nat'l Compressed Steel Corp. V. Unified Gov't of Wyandotte County/Kansas City -- Lockett -- Kansas Supreme Court

sovereign and comes into being with the establishment of government and continues as long as the government endures, but its exercise may be limited by the Constitution. Deisher v. Kansas Dept. of Transportation, 264 Kan. 762, Syl.

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