Koch v. Packard

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No. 107,585

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JOSEPH R. KOCH, Trustee of the
JOSEPH R. KOCH REVOCABLE TRUST dated March 12, 1993,
Appellee,

v.

E. LYNN PACKARD and JAYNE E. PACKARD,
Cotrustees of the E. LYNN PACKARD REVOCABLE TRUST dated July 10, 2003, and JAYNE
E. PACKARD and E. LYNN PACKARD,
Cotrustees of the JAYNE E. PACKARD REVOCABLE TRUST dated July 10, 2003,
Appellants.

SYLLABUS BY THE COURT

1.
To obtain an easement for a private way by prescription, the use of such private
way must be substantially such a use as would give title to land by adverse occupancy.
The use must have been continuous, exclusive to the extent the nature of the use will
permit, and adverse. A use under a mere license will not ripen into an easement by
prescription.

2.
When a party seeks title by adverse possession, the presumption is in favor of the
holder of the legal title. The law does not allow a person's property to be taken by another
upon presumptions or probabilities. Thus, to prove a prescriptive easement, the person
seeking the right to the easement has the burden of establishing all the elements of
prescriptive use by clear, convincing, and satisfactory evidence.



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3.
The question whether title is acquired by adverse possession is a question of fact.
When reviewing the lower court's determination on this question, this court looks to
whether that determination is based on clear and convincing evidence. This court views
the evidence in a light most favorable to the prevailing party and does not reweigh the
evidence or assess credibility.

4.
Under K.S.A. 60-503, no action shall be maintained against any person for the
recovery of real property who has been in open, exclusive, and continuous possession of
such real property, either under a claim knowingly adverse or under a belief of
ownership, for a period of 15 years.

Appeal from Barber District Court; JACK A. MURPHY, judge. Opinion filed November 2, 2012.
Reversed and vacated.

Alan C. Goering, of Goering and Slinkard, of Medicine Lodge, for appellants.

Gordon B. Stull, of Stull Law Office, P.A., of Pratt, for appellee.

Before MCANANY, P.J., MALONE and HILL, JJ.

HILL, J.: In this appeal, we overturn the district court's ruling that Joseph R. Koch
acquired a prescriptive easement in a roadway on land owned by E. Lynn and Jayne E.
Packard in Barber County. Kansas caselaw requires exclusivity as an element for
prescriptive uses. The facts in this record reveal that Koch has not had the exclusive use
of this roadway over the years and, therefore, the court erred when it ruled that he had a
prescriptive easement.


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Installation of a gate leads to legal action.

This lawsuit involves adjacent landowners located in Barber County, Kansas.
Joseph R. Koch (as trustee of the Joseph R. Koch Revocable Trust) owns one tract. Koch
purchased this ground in 1993. E. Lynn Packard and Jayne E. Packard also own real
property adjacent to Koch's. The Packards purchased part of their land in 2000 and the
remainder in 2005.

In January 2011, Koch filed a petition for declaratory judgment in Barber County
District Court claiming he had a prescriptive easement across the Packard land. Koch
claimed that a roadway across the Packards' land gave him access to his land—and that
the Packards had interfered with this access by installing a gate that prevented Koch from
getting to his property. Koch asked the court for an order determining he had a
prescriptive easement across the Packards' land, an award for damages sustained when
the Packards interfered with his easement, and a permanent injunction enjoining the
Packards from interfering with the easement. We note that Koch is not asking for an
easement by necessity. When Koch acquired his property, he was required to prove he
had access in order to qualify for title insurance. Consequently, Koch obtained a warranty
deed that included a "perpetual road easement" for the purpose of ingress and egress to
his property.

We summarize the findings of the district court.

After weighing the testimony of the witnesses, the court found that when Koch
purchased the tract, he was advised by counsel to obtain affidavits from a prior
landowner, Phillip R. Stonestreet, and a farm tenant, George E. Catlin, Sr., confirming
the belief that Koch had acquired unrestricted access to the Koch land via the roadway.
The court found that when Koch bought the land, he was told the roadway was his access
to the property and there was no other roadway to the land. He was also told the access
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was unrestricted and the roadway had been used to access the tract for more than 20
years. The court determined Koch never requested permission, nor was he ever given
permission, to use the roadway because he believed he acquired use of the roadway upon
his purchase of the farm.

When the court looked at the actual usage of the roadway, it found Koch had been
using the roadway for farming, recreational, and hunting purposes, and to generally care
for his land since 1993 (a period greater than 18 years)—and this usage had been
unrestricted. The court also found that Koch and his invitees frequently used the roadway
and that Koch had even attempted to perform maintenance on the roadway at one point.
The court noted Koch's testimony that the roadway had also been used by the landowners
that own property south of the Packards' land, and he and others are currently using the
roadway and have been for many years. The court observed that Koch admitted he was
not claiming "exclusive use" of the roadway.

Turning to the Packards' evidence, the court determined the Packards were aware
that persons, including Koch, had used the roadway for access for many years prior to the
Packards' purchase of their land. The court found the Packards never questioned Koch's
use of the roadway nor tried to stop his use of the roadway until there was a dispute in
2010 regarding deer hunting. The court said that although Mr. Packard initially claimed
he gave Koch permission to use the roadway, he later testified the Packards never gave
Koch permission to use the roadway and Koch never asked for permission. The court
found the Packards were also aware that third parties used the roadway to access property
south of the Packards' land. The court noted testimony that the roadway was used by
Catlin, Bob Larson, Robert Larson, Pat Bidwell, friends of Koch, people who checked on
CRP planting, and people who came on the land to spray alfalfa.

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In addition, the court found that in 2010 the Packards began allowing cattle to
roam freely on the roadway. The court also determined the gate did not block anyone's
ability to drive down the roadway.

The district court ultimately determined that Koch had acquired a prescriptive
easement across the Packards' land. In addition, the court found the Packards had
committed trespass by installing a gate across the easement and by allowing cattle to
graze there. The court awarded Koch damages, ordered the Packards to remove the gate,
and enjoined them from interfering with Koch's use of the roadway.

In reaching its decision, the district court concluded there was "more than
sufficient evidence to establish clearly and convincingly" that Koch had been using the
roadway for more than 15 years and the Packards did not give Koch permission to do so.
The court also concluded Koch had good reason to believe he had an ownership interest
in the roadway and Koch's use of the roadway was exclusive. With regard to the latter,
the court said the caselaw "clearly indicates" that exclusivity differs for purposes of a fee
interest from exclusivity for purposes of an easement. The court stated: "When
considering a claim for prescriptive easement, the type, nature of use and surrounding
circumstances must be considered. Here, [Koch] has shown exclusive use for access to
his property, the fact that others have also used the roadway does not negate his claim."

The Packards appeal the decision of the district court, arguing that Koch cannot
have a prescriptive easement in the roadway because he did not prove he had "exclusive
use" of the roadway.





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We review the rules that apply in prescriptive easement cases.

We look to the law of adverse possession when determining the legal rules that
apply in prescriptive easement cases. A firm ruling on this point can be found in Feist v.
Steere, 175 Kan. 1, 5, 259 P.2d 140 (1953), where the court stated:

"'To obtain an easement for a private way by prescription, the use of such private way
must be substantially such a use as, if applied to land, would give title by adverse
occupancy. It must have been continuous, exclusive to the extent the nature of the use
will permit, and adverse. A use under a mere license will not ripen into an easement by
prescription.' [Citation omitted.]"

In Feist, the court held that the party claiming the easement, Feist, had proved that for 35
or 40 years he had used a small, unfenced triangular tract of Steere's land as a means of
ingress and egress to his hay meadow. Further, Steere and his predecessors in title knew
of the use and had made no objection to its use. Our Supreme Court opined: "[T]he most
that can be said for such evidence is that it established a license to use the premises
which . . . can never ripen into an easement by prescription." 175 Kan. at 6; see
Allingham v. Nelson, 6 Kan. App. 2d 294, 298, 627 P.2d 1179 (1981).

When a party seeks title by adverse possession, the presumption is in favor of the
holder of the legal title. The law does not allow a person's property to be taken by another
upon presumptions or probabilities. Stith v. Williams, 227 Kan. 32, 36, 605 P.2d 86
(1980). Thus, to prove a prescriptive easement, the person seeking the right to the
easement has the burden of establishing all the elements of prescriptive use by clear,
convincing, and satisfactory evidence. Fiest, 175 Kan. at 6.

The question whether title is acquired by adverse possession is a question of fact.
Wright v. Sourk, 45 Kan. App. 2d 860, 871, 258 P.3d 981, rev. denied 293 Kan. ___
(January 20, 2011). When reviewing the lower court's determination on this question, this
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court looks to whether that determination is based on clear and convincing evidence. See
Brady Fluid Service, Inc. v. Jordan, 25 Kan. App. 2d 788, 793-94, 972 P.2d 787 (1998).
This court views the evidence in a light most favorable to the prevailing party and does
not reweigh the evidence or assess credibility. Wright, 45 Kan. App. 2d at 871.

The statute dealing with adverse possession, K.S.A. 60-503, provides:

"No action shall be maintained against any person for the recovery of real
property who has been in open, exclusive and continuous possession of such real
property, either under a claim knowingly adverse or under a belief of ownership, for a
period of fifteen (15) years."

The Kansas cases dealing with adverse possession make clear that "exclusive use"
is a necessary requirement to prove title by adverse possession.

In Stith, the court held the Williams did not prove ownership of land by adverse
possession where the evidence did not show the Williams' use of the land was "exclusive"
or "continuous." In reaching this conclusion, the court noted the Williams "occasionally"
used a cellar and shed located on the land and some neighbors used the land as a trash
dump. 227 Kan. at 37.

Similarly, in Thompson v. Hilltop Lodge, Inc., 34 Kan. App. 2d 908, 910-11, 126
P.3d 441 (2006), a panel of this court affirmed a district court's determination that the
claimants did not have "exclusive possession" of land allegedly taken by adverse
possession, noting several of the landowner's employees had performed maintenance on
the land.

Then, in Allingham this court commented on the exclusivity requirement, but in
the context of a prescriptive easement. There, the court referred to the requirement and
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noted there was evidence in that case that both the public and KP&L used the land at
issue. Nevertheless, the court observed there was "no serious contention on appeal by
either party" in that case that the use of the land was not exclusive. 6 Kan. App. 2d at
299.

Koch points out that the Allingham court said there is a distinction between
prescriptive easements and adverse possession, noting a prescriptive easement is a "non-
exclusive" right acquired by the manner of use. Koch misconstrues Allingham on this
point. While the Allingham court indeed acknowledged that some legal literature has
described a prescriptive easement as a nonexclusive right, the court explained that the
distinction in Kansas between adverse possession and the prescriptive easement has been
somewhat "blurred." Thus, the court explained, Kansas cases use the statute of adverse
possession as a basis for evaluating prescriptive easement claims. 6 Kan. App. 2d at 298.
The Allingham court cited K.S.A. 60-503, which specifically lists exclusive use as a
requirement for proving adverse possession, and later referred to the exclusive use
requirement in its analysis. 6 Kan. App. 2d at 298-99.

We apply those rules to the facts of this case.

In this appeal, the Packards argue Koch failed to meet his burden of proving an
essential element of prescriptive use. Viewing the evidence in the light most favorable to
Koch, see Wright, 45 Kan. App. 2d at 871, we examine the record to determine whether
clear and convincing evidence supports the district court's determination that Koch
proved the prescriptive use of the roadway.

A fair review of the evidence makes it clear that Koch did not have exclusive use
of the roadway.

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First, the district court found, based on Koch's own testimony, that the roadway
was used by the landowners south of the Packards' land and Koch and others had been
using the roadway for years. The court found the Packards were aware that persons
including Koch had used the roadway for many years and third parties used the roadway
to access the property south of the Packards' land. The testimony of both Koch and the
Packards reveals that persons other than Koch were using the roadway.

Second, the district court observed that when Koch purchased his land, he was
advised by counsel to obtain affidavits from Stonestreet and Catlin confirming that he
had unrestricted access to the Koch land via the roadway. In Stonestreet's affidavit, he
indicated the roadway was "available for unrestricted access . . . by the owners, tenants
and other persons." Catlin made a similar statement in his affidavit. Stonestreet's and
Catlin's statements suggest persons other than Koch used the roadway even before Koch's
ownership of his property.

Third, Koch admitted—and the court explicitly found—he was not claiming
exclusive use of the roadway. Koch testified as follows:

"Q. So you're not claiming exclusive use?
"A. That's right.
"Q. Okay. Just that you ought to have the right to use it because you said it was used by
other people?
"A. Right. Plus, my period of time using it."

Significantly, Koch's own testimony indicates he believed he had the right to use the
roadway because it was being used by other people as well. This undercuts his argument
that exclusivity only requires the claimant not depend on the rights of others.

Fourth, the district court found the Packards' gate did not block any persons'
ability to drive down the roadway and noted testimony that the roadway was used by
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Catlin, Bob Larson, Robert Larson, Pat Bidwell, friends of Koch, government workers
who checked on CRP ground, and people who came on the land to spray alfalfa. Koch
does not challenge any of these factual findings on appeal.

We look at the arguments of the parties on the issue of exclusivity.

Koch's central argument on this point is that the exclusivity requirement does not
mean the land at issue must be used solely by the person claiming the prescriptive
easement. Koch says that here, a third party had access to the roadway—but this third
party was an adjoining landowner who also used the easement for the same reason Koch
did, and his rights did not conflict with the third party's rights. Koch points to cases in
other jurisdictions where courts have determined the exclusivity requirement does not
mean the land can only be used by the person claiming the easement, but only that the
claimant may not depend on the rights of others to support his claim. Koch says the
claimant's use must be exclusive against the public at large, but it need not be exclusive
against others with similar claims of prescriptive use.

We note a few examples of rulings from other states. In Wheeler v. Newman, 394
N.W.2d 620, 623 (Minn. App. 1986), the court held the exclusivity requirement was met
where sporadic public use of the land did not defeat a finding that the claimant's use of
the land did not depend on a right shared by the community at large. In Werner v.
Schardt, 222 Neb. 186, 188-89, 382 N.W.2d 357 (1986), the court stated the word
"exclusive," as it pertains to a prescriptive easement, does not mean there must be use by
only one person, but it means the use cannot be dependent upon a similar right in others.
These decisions seem reasonable in light of the fact that a party is not claiming title to
real estate but is claiming access. But we are in no position to follow their reasoning.

No Kansas court has ever analyzed the element of exclusivity in a similar manner.
When Kansas courts have considered the requirement of exclusivity in the adverse
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possession context, those courts have determined the claimant's use of the property at
issue must be to the exclusion of all other persons. See Stith, 227 Kan. at 37; Thompson,
34 Kan. App. 2d at 910-11. The Allingham court confirmed that because the distinction
between adverse possession and prescriptive easements has been "blurred" in Kansas,
courts use the statute of adverse possession as a basis for evaluating prescriptive
easement claims. 6 Kan. App. 2d at 298.

We recognize that a certain inequity arises under the facts of this case. Koch
purchased the property thinking he had easy access to his land from this roadway and
then, along with others, proceeded to use the roadway for the next 18 years. Because of a
hunting dispute, his access was shut off. While it is true that Koch has access to his
property through an easement he purchased separately, its use will require an investment
of time, labor, and money to make it usable. But according to our caselaw that we are
duty bound to follow, all of the elements of adverse possession must be proved in order
for Koch to prevail. See Tyler v. Goodyear Tire & Rubber Co., 43 Kan. App. 2d 386,
391, 224 P.3d 1197 (2010). One of those elements is exclusivity. He cannot prove that
under the circumstances of this case. Like Feist, who had used the roadway for 35 to 40
years, all Koch had was a license which cannot change into a prescriptive easement.

We reverse the ruling of the district court that Koch has a prescriptive easement.
We vacate the judgment for damages and dissolve the injunction.