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.
In particular, the verdict in a condemnation proceeding must be within the range of the opinion testimony admitted at trial. Mettee v. Kemp , 236 Kan. 781, 787, 696 P.2d 947 (1985). The before value must not be more than the highest expression of opinion evidence and the after value must not be less than the lowest expression of opinion of the value of the property remaining after the taking.
One is IN [sic] considering the loss to Mullinax in ascertaining damages. In Lindt v, Murray, 895 P.2d 459, [463] (Wyo. 1995) and R.C.R. Inc. v. Deline, 70 P.3d 214, [221] (Wyo. 2003) the Wyoming Supreme Court cited Mettee v. Kemp, [ 236 Kan. 781], 696 P.2d 947, [949] (Kan. 1985) as articulating various factors which may be considered in determining damages. It would seem that the loss of convenience or use, the potential effective taking of additional land to meet the runoff need, the loss of this profitable use are each consistent with factors listed in Mettee. A second method of addressing this loss to Mullinax is by way of the "reasonable and convenient" analysis that is required of this Commission in determining the location of a private road.
The trial court granted Small a new trial because the jury's findings in the first trial were not within the range of the value testimony. Mettee v. Kemp, 236 Kan. 781, 696 P.2d 947 (1985). The State contends our decision in Mettee is wrong and should be overruled. It requests that we reconsider Mettee and rule that a verdict is properly within the range of opinion testimony if the before value finding is lower than the highest before value opinion in evidence or the after value finding is higher than the lowest after value opinion in evidence.
Whether a prior sale is too remote in time is a question to be determined by the district court in the exercise of judicial discretion. Mettee v. Kemp, 236 Kan. 781, 790, 696 P.2d 947 (1985); Wilkey v. Kansas City Power Light Co., 6 Kan. App. 2d 599, 615, 631 P.2d 268, rev. denied 230 Kan. 819 (1981). There are three generally recognized approaches to valuation of real property: (1) the cost approach, i.e., the reproduction cost of the property at the time of the taking less depreciation; (2) the market data approach, i.e., the value of the property based upon recent sales of comparable properties; and (3) the income approach, i.e., the capitalization of net income from the property.
Therefore, we remand to the district court with directions that the district court remand to the Board and the Board reassemble the viewers and appraisers, or if necessary a different body of viewers and appraisers, and those viewers and appraisers assess damages as follows: (1) determine the value of the entirety of the Lindts' affected land before the private road was established; then, (2) determine the value of the Lindts' remaining land after the private road is in place; (3) subtract the "after" value from the "before" value, which then equals the damages due the Lindts. Coronado Oil Co. v. Grieves, 642 P.2d 423, 433 (Wyo. 1982); and see generally Mettee v. Kemp, 236 Kan. 781, 696 P.2d 947, 949 (1985) (discussing Kansas statute which enumerates factors which may be considered in the "before-after" analysis).See also Mayland v. Flitner, 2001 WY 69, ¶¶ 32-44, 28 P.3d 838, ¶¶ 32-44 (Wyo. 2001) and Miller v. Bradley, 4 P.3d 882, 888-89 (Wyo. 2000).
Therefore, we remand to the district court with directions that the district court remand to the Board and the Board reassemble the viewers and appraisers, or if necessary a different body of viewers and appraisers, and those viewers and appraisers assess damages as follows: (1) determine the value of the entirety of the Lindts' affected land before the private road was established; then, (2) determine the value of the Lindts' remaining land after the private road is in place; (3) subtract the "after" value from the "before" value, which then equals the damages due the Lindts. Coronado Oil Co. v. Grieves, 642 P.2d 423, 433 (Wyo. 1982); and see generally Mettee v. Kemp, 236 Kan. 781, 696 P.2d 947, 949 (1985) (discussing Kansas statute which enumerates factors which may be considered in the "before-after" analysis).See also Mayland v. Flitner, 2001 WY 69, ¶¶ 35-39 and Miller v. Bradley at 888-89.
Therefore, we remand to the district court with directions that the district court remand to the Board and the Board reassemble the viewers and appraisers, or if necessary a different body of viewers and appraisers, and those viewers and appraisers assess damages as follows: (1) determine the value of the entirety of the Lindts' affected land before the private road was established; then, (2) determine the value of the Lindts' remaining land after the private road is in place; (3) subtract the "after" value from the "before" value, which then equals the damages due the Lindts. Coronado Oil Co. v. Grieves, 642 P.2d 423, 433 (Wyo. 1982); and see generally Mettee v. Kemp, 236 Kan. 781, 696 P.2d 947, 949 (1985) (discussing Kansas statute which enumerates factors which may be considered in the "before-after" analysis). Under the circumstances of this case which involves complex and troublesome questions of fact and law, and especially in view of our decision to remand for a proper determination of damages, we vacate the district court's assessment of attorney's fees against the Lindts.
The record supports an award based upon a division of 54.28% to 45.72%, a 66% to 34% division, or a percentage within these ranges. Mettee v. Kemp, 236 Kan. 781, 696 P.2d 947 (1985). However, in view of the decision we reached on the foregoing issue, this issue is moot and need not be addressed.