Brownback v. Doe

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No. 102,355

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JOHN BROWNBACK,
Appellee,

v.

JOHN/JANE DOE, TRUSTEE OF THE THOMAS M. GILKISON TRUST,
Dated December 13, 1980; and
RICHARD WILSON and MARY WILSON,
Appellants,

and

THE BOARD OF COUNTY COMMISSIONERS OF
LINN COUNTY, KANSAS,
Appellee.


SYLLABUS BY THE COURT

1.
Kansas cases use the adverse possession statute to determine if the elements of a
prescriptive easement are present. The existence of a public easement is a question of fact
reviewed for substantial competent evidence of a clear and convincing quality.

2.
In a claim of title by adverse possession, every presumption is in favor of the
holder of the legal title and against the claimant. The law will not allow the property of a
person to be taken by another upon slight presumptions or probabilities. The facts relied
upon to establish adverse possession cannot be presumed, and presumptions will not be
indulged in to establish a claim of title.

3.
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To establish a road or highway by prescription, the land in question must have
been used by the public with the actual or implied knowledge of the landowner, adversely
under claim or color of right, not merely by the owner's permission, and continuously and
uninterruptedly, for the period required to bar an action for the recovery of possession of
land or otherwise prescribed by statute. When these conditions are present a highway
exists by prescription; otherwise it does not.

4.
In designating a road as a public road by prescription, public maintenance of the
road is most significant.

5.
In order to designate a public road by prescription, there must be some action,
formal or informal, by the public authorities indicating their intention to treat the road as
a public road.

Appeal from Linn District Court, MARK ALAN WARD, judge. Opinion filed November 12, 2010.
Reversed.

Michael W. Blanton, of Leawood, and Nathan C. Harbur, of Nathan C. Harbur, Chartered, of
Leawood, for appellants.

Blake Hudson, of Hudson & Mullies, L.L.C., of Fort Scott, for appellee John Brownback.

Gary E. Thompson, of Mound City, for appellee Board of Linn County Commissioners.

Before PIERRON, P.J., GREEN and MARQUARDT, JJ.

MARQUARDT, J: John/Jane Doe, Trustee of the Thomas M. Gilkison Trust (Trust),
dated December 13, 1980, Richard Wilson, and Mary Wilson appeal the district court's
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finding that a public road existed by prescriptive easement on property owned by the
Trust. We reverse.

In October 2006, John Brownback acquired 172 acres of land in Linn County,
Kansas. Several months later, Brownback sold 142 acres of the northern portion of his
land and retained the remaining 30 acres to the south. Brownback accessed his 30 acres
(Brownback property) by utilizing a "road," approximately 28 feet wide and 285 feet
long, bordered by parallel fences and located on the southeast portion of the Trust
property.

The western edge of Brownback's property abuts the northeastern edge of the
Trust property. The "road" dead ended on the north end of the Trust property with a gate
on the east fence leading to the Brownback property. The fence on the west had a gate
leading to the Trust property. The "road" connected to Gwynn Road, a county road, on its
south end. The Trust acquired its property in 2001 from Thomas and Elizabeth Gilkison.
Mary Gilkison Wilson was the trustee of the Trust and was appointed as its property
manager.

On December 12, 2007, Brownback filed a petition to establish the "road" he used
to access his property as either (1) a public or private easement by prescription or (2) an
easement by necessity. After several pretrial hearings, Brownback voluntarily abandoned
his claims for a private easement and an easement by necessity.

The district court held a 3-day bench trial in February 2009. Several individuals
testified that they sporadically used the "road" with or without permission over a period
of more than 20 years to access the Brownback property to hunt, to cut timber and hay,
and to "park."
Additionally, retired Linn County Highway Department employees testified they
performed maintenance twice on the "road" in the mid to late 1980's. There was no
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evidence that the County did any other "road" maintenance before or after the 1980's.
Department employees testified they were aware of instances when county employees
repaired and regularly maintained other private roads and driveways.

At trial, Brownback and Richard Wilson, Mary Wilson's husband, admitted into
evidence maps, pictures, and aerial photographs suggesting both the presence and
absence of a public road on the Trust's property. Brownback relied on an 1886 map of
Linn County, taken off the courthouse wall during trial, and an unofficial 1906 plat book
to claim that the "road" was a public road from 1886 to 1906 and continues to be a public
road to the present.

According to land surveyor James Schmitz, Brownback's map expert, the 1886
map depicted a public road running through the Trust property. However, Schmitz
suggested there was some confusion about whether the 1886 map actually depicted a
public road on the Trust property. The legend on the map showed this road by a single
line, but the map used double lines for public roads. Schmitz testified that the 1886 map
broke the "cardinal rule of surveying" by incorrectly portraying fractional government
lots to the east of a section line and, therefore, could contain other errors.

Additionally, Schmitz testified that there is no evidence of any official road, either
public or private, that existed after 1906 on the Trust's property. Nevertheless, Schmitz
asserted the presence of two parallel rock walls that extended north from the "road"
suggested the "road" was a public road at some time. Schmitz also noted the 1906 plat
book indicated a "wagon road" entered the Trust property from the south; however, the
plat book did not describe the function of a "wagon road."

Brownback had two aerial photographs from 1971 and 1956 admitted into
evidence. Former Linn County Engineer Richard Long compared these photographs and
determined that an individual must have performed some periodic maintenance on the
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"road" due to the road's coloring, but he could not confirm whether the County or a
private party performed the maintenance.

In contrast, Richard Wilson admitted official county maps from 1998, 1989, 1982,
1976, 1969, 1954, and 1936, which he obtained from the Kansas Department of
Transportation (KDOT). All the KDOT maps indicated there was no public road on the
Trust's property. Additionally, Larry Robinson, the Linn County traffic safety coordinator
and zoning administrator, noted the "wagon roads" described in the unofficial 1906 plat
book were likely roads constructed by the federal government to access government lots
and were never considered public roads.

Richard Wilson testified there was a three-strand barbed wire gate across the south
entrance of the "road" with a "No Trespassing" sign on or near the gate when the Trust
acquired the property in 2001. Sometime between 2003 and 2006, however, vandals
removed the gate. Wilson did not construct a new gate until 2008.

In its order filed on April 1, 2009, the district court found that Brownback had
proved

"by clear, convincing and satisfactory evidence that the public thought this was a public
road, they used it as a public road with the actual or implied knowledge of the landowner,
adversely under claim or color of right and not merely by the owner's permission and said
use was continuous and uninterrupted for at least fifteen (15) years."

The district court did not designate the specific 15-year continuous and
uninterrupted prescriptive period. The district court found that (1) several witnesses
testified they used the "road" without permission numerous times over the last 50 to 60
years; (2) the 1886 map, the 1906 plat book, and the rock walls indicated that the "road"
was either a public road or a "wagon road"; (3) the 1886 map and the 1906 plat book
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showed that the Trust had actual or implied knowledge that the public used the "road";
and (4) it was the only available means of ingress and egress for the Brownback property.
The district court concluded with this evidence that Brownback established continuous
and uninterrupted use from 1886 to the present.

The district court, however, acknowledged that the County did not regularly
maintain the "road," that the "road" was not depicted as a public road on any official
KDOT map, and that the landowners of the property paid taxes on the "road" as if it were
private property since 1989. The Trust timely appeals.

The Trust contends the district court erred in determining Brownback had
established a public easement by prescription. Kansas cases "use the adverse possession
statute, K.S.A. 60-503, to determine if the elements of a prescriptive easement are
present." Stramel v. Bishop, 28 Kan. App. 2d 262, 264, 15 P.3d 368 (2000), rev. denied
271 Kan. 1042 (2001). The existence of a prescriptive easement is a question of fact
reviewed for substantial competent evidence of a clear and convincing quality. Brady
Fluid Svc., Inc. v. Jordan, 25 Kan. App. 2d 788, 793-94, 972 P.2d 787 (1998).

"In a claim of title by adverse possession, every presumption is in favor of the
holder of the legal title and against the claimant. The law will not allow the property of a
person to be taken by another upon slight presumptions or probabilities. The facts relied
upon to establish adverse possession cannot be presumed, and presumptions will not be
indulged in to establish a claim of title." Chesbro v. Board of Douglas County Comm'rs,
39 Kan. App. 2d 954, Syl. ¶ 3, 186 P.3d 829, rev. denied 286 Kan. 1176 (2008).

In Kratina v. Board of Commissioners, 219 Kan. 499, 502, 548 P.2d 1232 (1976),
the Kansas Supreme Court discussed the elements required to establish a public
prescriptive easement:

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"'To establish a highway by prescription the land in question must have been used
by the public with the actual or implied knowledge of the landowner, adversely under
claim or color of right, and not merely by the owner's permission, and continuously and
uninterruptedly, for the period required to bar an action for the recovery of possession of
land or otherwise prescribed by statute. When these conditions are present a highway exists
by prescription; otherwise not.' [Citations omitted.]"

The Kratina court stated: "Mere use by the traveling public is not enough to
establish . . . that the use is adverse . . . . There must in addition be some action, formal or
informal, by the public authorities indicating their intention to treat the road as a public
one." 219 Kan. 499, Syl. ¶ 3.

Here, the district court noted: "[T]he Plaintiff presented the two (2) maps . . .
which clearly indicate the 'road' was a public road and therefore the use would be with
the actual and implied knowledge of the landowner, adverse and under claim or color of
right." (Emphasis added.) Although it is undisputed that members of the public
periodically used this "road" for decades, there is no evidence in the record on appeal
how the "road" was used from 1886 to 1906 and whether the use was continuous,
uninterrupted, or adverse to the landowner.

In Kratina, the court found that in designating a road as a public road by
prescription, public maintenance is most significant. See 219 Kan. at 501, 504-505.
Although the district court did not discuss this "road's" maintenance in its decision, it
noted that Linn County employees only worked on the "road" on two separate occasions
in the late 1980s. See 219 Kan. 499, Syl. ¶ 3.

In Biggs Feed and Grain, Inc. v. City of Waverly, 3 Kan. App. 2d 423, 424, 596
P.2d 171 (1979), this court applied Kratina's "public maintenance" requirement and
determined the City of Waverly, Kansas, established a public easement by prescription by
expending public funds and city labor to perform maintenance on a city street for 19
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years. The court noted the City performed considerable maintenance on the road,
including "grading, ditching, rocking, repairing, mowing," and removing snow. 3 Kan.
App. 2d at 424. Likewise, in Schroeder v. Urban, 13 Kan. App. 2d 164, 167, 766 P.2d
188 (1988), rev. denied 244 Kan. 738 (1989), this court concluded that a township
established a public easement by prescription by continually maintaining, grading, and
elevating a road for more than 40 years.

In this case, the district court relied solely on Stramel to impute knowledge of
public use to the landowner. See 28 Kan. App. 2d at 266. In Stramel, the Logan County
Road Supervisor testified the County or the Township had maintained the road since
1946. The evidence in the record on appeal in the instant case is that over a period of
more than 100 years, the County ditched and graded the "road" twice. This is not
evidence of periodic county road maintenance on the "road" for a 15-year period. Linn
County also argues that someone working on the "road" two times does not establish a
pattern of maintaining the road.

Kratina mandates that in order to designate a public road by prescription, there
must be "some action, formal or informal, by the public authorities indicating their
intention to treat the road as a public one." 219 Kan. 499, Syl. ¶ 3. There is no evidence
in the record on appeal that Linn County ever formally dedicated, opened, or officially
recognized this "road" as a part of the county road system.

The record on appeal does not support by clear and convincing evidence that a
public easement by prescription was created on the Trust property.

Reversed.