Printable Format17-618. Eminent domain, exercise by sundry corporations and partnerships. Lands may be appropriated for the use of macadam-road, plank-road, hospital corporation or association, telegraph and telephone corporations, electric, hydraulic, irrigating, milling and manufacturing corporations using power, oil companies, pipeline companies, and for the piping of gas in the same manner as is provided in K.S.A. 26-501 to 26-516, inclusive, and any macadam-road, plank-road, telegraph and telephone corporations, hydraulic, irrigating, oil company, pipeline company, gas company, partnership holding a certificate of convenience as a public utility issued by the state corporation commission, milling or manufacturing corporation using power desiring the right to dam or take water from any stream, to conduct water in canals or raceways or pipes, or to conduct compressed air in pipes, or to conduct oil in pipes or conduct gas in pipes, or transmit power or communications by shafting, belting, or belting and pulleys, or ropes and pulleys, or by electrical current, or by compressed air, may obtain such right or the right-of-way for all necessary canals, raceways, pipes, shafting, belting and pulleys, ropes and pulleys or wires or cables in manner as aforesaid; and such canals, raceways, pipes, shafting, belting, belting and pulleys, ropes and pulleys or wires or cables may be laid, carried or stretched on, through or over any land or lot, or along or upon any stream of water, using so much of the water thereof as may be needed for any of the purposes aforesaid, or through any street or alley or public ground of any city of the second or third class: Provided, That no such canal or raceway shall be located through any street or alley or any public ground of any city without the consent of the municipal authorities thereof: Provided further, That it shall be unlawful for any person or corporation to locate or construct any irrigating canal or raceway along or upon any stream of water or take and use the water of any stream in such manner as to interfere with or in any wise hinder, delay or injure any milling or irrigating improvements already constructed or located along or upon any stream of water, or to diminish the supply of water flowing to or through any established irrigating canal: Provided further, That in case of the erection of a dam, the report of the commissioners, instead of defining the quantity and boundaries of the land overflowed, shall designate particularly the height of such dam.
History: G.S. 1868, ch. 23, § 88; L. 1871, ch. 64, § 1; L. 1876, ch. 58, § 1; L. 1891, ch. 85, § 1; L. 1899, ch. 95, § 1; L. 1901, ch. 128, § 1; L. 1917, ch. 122, § 1; R.S. 1923, 17-618; L. 1947, ch. 183, § 1; L. 1963, ch. 234, § 37; January 1, 1964.
Cross References to Related Sections:
Disposal of oil-field or gas-field brines, see 55-1003.
Certain corporations and partnerships, see 17-1903, 26-101.
Law Review and Bar Journal References:
Burden of proof in eminent domain proceedings, 14 W.L.J. 355, 356 (1975).
"Legal Constraints on Diverting Water from Eastern Kansas to Western Kansas," John C. Peck, 30 K.L.R. 160, 206 (1982).
"Legal Aspects of Water Storage in Federal Reservoirs in Kansas," John C. Peck, 32 K.L.R. 785 (1984).
Attorney General's Opinions:
Laying of pipeline and other public utility uses of roadways. 82-27.
CASE ANNOTATIONS
1. Courts determine whether use prescribed is public use; legislature determines when power may be exercised for public use. Irrigation Co. v. Klein, 63 Kan. 484, 491, 65 P. 684.
2. Production and distribution of natural gas; business of public nature; legislature may grant right of eminent domain to gas company. La Harpe v. Gas Co., 69 Kan. 97, 101, 102, 103, 76 P. 448.
3. Section considered in discussing right to appropriate water for irrigation. Clark v. Allaman, 71 Kan. 206, 238, 80 P. 571.
4. Company piping and distributing gas has right of eminent domain; gas company may bury its pipe line in the public highway. The State v. Natural Gas Co., 71 Kan. 508, 509, 80 P. 962.
5. Flour mill operated by steam has no right of eminent domain. Howard v. Schwartz, 77 Kan. 599, 603, 605, 606, 607, 95 P. 559.
6. Definite width of right of way need not be described. Love v. Empire Natural Gas Co., 119 Kan. 374, 377, 239 P. 767.
7. Petitioner cannot dismiss proceedings after verdict rendered. Stewart v. Marland Pipe Line Co., 132 Kan. 725, 726, 727, 297 P. 708.
8. Section cited in appeal under R.S. 1923, 26-101. Knox v. Great Lakes Pipe Line Co., 135 Kan. 170, 171, 9 P.2d 650.
9. Cited; no man can acquire an easement in his own lands. Johnston v. City of Kingman, 141 Kan. 131, 134, 39 P.2d 924.
10. Gas pipe-line company without authority to condemn underground stratum for gas storage. Strain v. Cities Service Gas Co., 148 Kan. 393, 396, 397, 398, 399, 83 P.2d 124.
11. Foreign electric utility company authorized to obtain right of way by condemnation; statutes construed. Cline v. Kansas Gas and Electric Company, 260 F.2d 271, 272, 273.
12. Public utility company authorized to exercise power of eminent domain for the acquisition of underground easements. Spears v. Kansas City Power & Light Co., 203 Kan. 520, 524, 455 P.2d 496.
13. What amounts to a valid exercise hereunder considered. Mid-America Pipe Line Co. v. Missouri Pac. Railroad Co., 298 F. Supp. 1112–14, 1118–23 (1969).
14. Action to enjoin exercise of power by electric utility; no abuse of reasonable discretion; injunction denied; zoning under K.S.A. 19-2914 et seq. not condition precedent to exercising powers hereunder. Concerned Citizens, United, Inc. v. Kansas Power and Light Co., 215 Kan. 218, 226, 234, 523 P.2d 755.
15. Section cited; Cities Service Gas Co. is a "public utility". Cities Service Gas Co. v. State Corporation Commission, 222 Kan. 598, 602, 567 P.2d 1343.
16. Property appropriated for public use affords appropriator permanent easement thereon, not fee simple title thereto. Kansas Gas & Electric Co. v. Winn, 227 Kan. 101, 104, 106, 605 P.2d 125.
17. Cited in concluding that even if purchaser of land has power of eminent domain the sale can still be a fair, arm's length transaction. Cain v. City of Topeka, 4 Kan. App. 2d 192, 194, 603 P.2d 1031.
18. Cited; statute does not authorize condemning authority to take fee simple title. Board of Education of U.S.D. 512 v. Vic Regnier Builders, Inc., 6 Kan. App. 2d 888, 892, 636 P.2d 802 (1981).
19. Right of eminent domain not precluded for novel purpose if reasonably within authority granted. Steele v. Missouri Pacific R.R. Co., 232 Kan. 855, 861, 659 P.2d 217 (1983).
20. Transmission of communications through fiber-optic cable held to be transmission by electrical current. Williams Telecommunications Co. v. Gragg, 242 Kan. 675, 679, 750 P.2d 398 (1988).
21. Mentioned in upholding eminent domain proceeding by telephone company; injunctive relief denied. Schuck v. Rural Telephone Service Co., 286 Kan. 19, 23, 24, 180 P.3d 571 (2008).