Thorpe v. Kraft

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NOT DESIGNATED FOR PUBLICATION

No. 118,960

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

WAYNE THORPE and KEVIN THORPE,
Appellees,

v.

THE RYAN E. KRAFT TRUST,
Appellant.


MEMORANDUM OPINION

Appeal from Bourbon District Court; TERRI L. JOHNSON, judge. Opinion filed May 17, 2019.
Reversed and remanded with directions.

Jennifer M. Hannah, of Lathrop Gage LLP, of Kansas City, Missouri, and Andrew J. Ricke, of the
same firm, of Overland Park, for appellant.

Zackery E. Reynolds, of The Reynolds Law Firm, P.A., of Fort Scott, for appellees.

Before BUSER, P.J., POWELL, J., and STUTZMAN, S.J.

BUSER, J.: This is a nuisance and trespass upon real property case. Wayne and
Kevin Thorpe (collectively, the Thorpes) sued the Ryan E. Kraft Trust (Trust),
contending the Trust caused increased flooding on their property by constructing a ditch
and berm. At trial, the district court ruled the Thorpes could submit to the jury their
liability theories of intentional nuisance and intentional trespass. The jury rendered a
verdict in favor of the Thorpes on both claims. After trial, the Trust renewed its motion
for judgment as a matter of law or a new trial. The district court denied the motion.

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The Trust appeals the district court's rulings. First, the Trust contends the Thorpes
failed to present sufficient evidence at trial to establish intent, causation, and damages.
Second, the Trust asserts the district court erred when instructing the jury.

Upon our review, we find the Trust's appeal is meritorious because the Thorpes
failed to present sufficient evidence that the Trust intended to commit the intentional torts
of nuisance and trespass. Accordingly, we reverse and remand with directions to grant the
Trust's motion for judgment as a matter of law.

FACTUAL AND PROCEDURAL BACKGROUND

This case concerns ditch work performed in 2011 on the Kraft Trust's property
(Kraft property) and a 2013 flood that caused water to damage the Thorpes' farmland.
The Thorpes are farmers and own a tract of agricultural property in Bourbon County
known as the Jane Farm. The Kraft property is situated directly north of the Jane Farm.
The Jane Farm consists of 52 acres of farmland. The Marmaton River borders the Jane
Farm on the west and south side of the farm. At the farm's northwest border, the
Marmaton River bends south and then generally travels southeast. The Jane Farm is in
the Marmaton River's floodplain.

To the north, the Kraft property is bordered by Native Road. While the Kraft
property's southwest corner is close to the Marmaton River, the property does not border
the river. Land owned by Sunflower Farms, LLC (Sunflower)—a company owned by
Carol Dengel—is directly west of the Kraft property. The Sunflower land has access to
the Marmaton River.

Roger Kraft bought the Kraft property and it was surveyed in 2007. In 2011, Kraft
noticed water ponding on his property by Native Road. Water runoff from about 200
acres north of the Kraft property was flowing south and running under a bridge on Native
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Road. The ponding on the Kraft property typically lasted three or four days before drying
out.

To alleviate the ponding problem, Kraft hired Neil Burkhart to perform ditch work
on the property. Burkhart dug a half-mile long ditch along the west side of the Kraft
property, running from the Native Road bridge to the Marmaton riverbank. The parties
dispute whether an earlier version of the ditch existed before Burkhart's construction. The
Thorpes assert the Trust created a new ditch and surrounding berms. On the other hand,
the Trust claims that Burkhart cleared out an existing ditch that was filled with silt and
other debris.

When digging the ditch, Burkhart dumped the excavated material alongside the
ditch. This material formed a berm, or levee, on either side of the ditch. The berm on the
east side of the ditch was more prominent than the berm on the west side. Although not
level, the berms were several feet high.

In addition to the ditch and berms, Burkhart constructed an outflow for water to
run from the ditch directly to the Marmaton River. The outflow was designed for water to
discharge down a 30-foot length of pipe, about 30 inches in diameter, and into the river.
The outflow emptied just upstream of the Jane Farm, near the farm's northwest corner. Of
note, Burkhart constructed the outflow on the Sunflower land without obtaining Dengel's
permission.

The Thorpes planted soybeans on the Jane Farm during the 2013 growing season.
Kevin Thorpe last observed the field in June 2013 when he sprayed the crop. In July and
August 2013—about two years after construction of the ditch—the Marmaton River
flooded.

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In October 2013, John Griffiths harvested the soybeans on the Jane Farm. At the
time, Griffiths noticed that the plants closer to the Marmaton River were laid flat and
covered with mud. Griffiths harvested the salvageable soybeans, but the overall yield was
only 19 bushels per acre for the entire 52 acres of farmland. In addition to the damaged
soybeans, the floodwater scoured the southwest portion of the Jane Farm. In particular,
water had washed over the land, stripped away the topsoil, and created holes and washes.
In some areas the water removed 16 inches of topsoil and left the ground "clay-ish
looking."

After discovering the flood damage, Wayne Thorpe complained to the Kansas
Department of Agriculture's Division of Water Resources (Division) and the United
States Army Corps of Engineers (Army Corps of Engineers). The Division informed
Kraft that an unpermitted channel change and floodplain fill may exist on the Kraft
property. A channel change occurs when a person changes a designated stream's direction
or volume. An unapproved floodplain fill is anything above 1 foot constructed in a river's
floodplain without a permit. Kraft did not respond to the Division's first two letters about
the unpermitted changes on the property. After the Division sent a third letter on
February 21, 2014, Kraft agreed to lower the berms to less than 1 foot above the previous
grade.

The Division inspected the Kraft property three times between August 2014 and
December 2015. During the first inspection, Kraft said he lowered the berms to less than
a foot. But the vegetation around the ditch was thick, obscuring the true height of the
berms. After the inspection, the Thorpes complained that the berms had not been
lowered. Inspections in December 2014 and December 2015 revealed some areas where
the berms were higher than a foot. After the December 2015 inspection, Kraft received an
after-the-fact permit for the placement of 2-foot berms alongside the ditch.

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The Army Corps of Engineers also inspected the ditch and outflow. It determined
that the ditch work was authorized by Nationwide Permit 41, which allows for reshaping
existing drainage ditches. The Army Corps of Engineers also determined that Nationwide
Permit 7 authorized the outflow construction.

On May 20, 2014, the Thorpes filed a lawsuit against the Trust for damages to the
2013 soybean crop, loss of topsoil, and devaluation of the Jane Farm caused by the threat
of future flooding. The Thorpes claimed the Trust's ditch work in 2011 exacerbated
flooding from the Marmaton River and increased damages to the Jane Farm. The Thorpes
asserted the Trust's action "constitute[s] a trespass and nuisance." Although monetary and
injunctive relief were requested in the petition, only monetary damages were sought at
trial.

Following discovery, the district court filed a pretrial order. In the order, the
Thorpes contended the ditch redirected drainage directly south, instead of allowing the
water to flow in a southeasterly direction. The Thorpes also asserted the berm prevented
flood water from spreading across the Kraft property, causing increased flooding—both
in volume and velocity—onto the Jane Farm. The Thorpes sought "damages for nuisance
and trespass."

On the other hand, in the pretrial order, the Trust contended the ditch and berms
had no negative effect on the Thorpes' property or crops. The Trust claimed the Thorpes
could not prove their claims of nuisance or trespass. In particular, they asserted the
Thorpes could not prove: (1) the Trust's intent to harm Thorpes' property; (2) causation
between the Trust's actions and the Thorpes' alleged damages; and (3) evidence of
damages.

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A four-day jury trial was held. The Thorpes presented an engineering expert—
Steven Lett—who testified about the effect of the ditch work on the Jane Farm. Lett
opined:

"The levee or berm alongside in the ditch actually impacts the storm events as the water
rises in flooding. Anything over about a ten-year flood or a 10 percent recurrence, there's
a 10 percent chance in any one given year that . . . type of storm would occur. This levee
keeps the water from spreading out over the entire width of the floodplain and actually
channelizes the water in the ditch down along the levee and then when it hits the end of
the ditch in flood stage, it, then, fans out, causing additional velocities and scouring of the
downstream property, which is the Thorpe property."

Lett elaborated on his opinions, clarifying that a 2-year storm—or a storm with a
50% likelihood of occurring in a year—would stay within the confines of the riverbank.
However, a 10-year or stronger storm would escape the Marmaton riverbank and flood
the Jane Farm. When the Marmaton River flooded, the berms prevented the water from
flowing onto the Kraft property. As a result, the water was forced into a small area, which
caused the water's flow velocity to increase significantly on the Jane Farm.

Lett testified that "[t]he levee actually constricted the amount of area available for
the water to flow and causes the flow to increase in velocity and that in my opinion is
what has caused the damage to the Thorpe property." Lett specifically opined that the
berm likely caused the damage to the Thorpes' soybeans and topsoil. Finally, Lett
explained that the ditch redirected drainage upstream from the Jane Farm. Before the
ditch work, the runoff from underneath the Native Road bridge had flowed across the
Kraft property and discharged downstream of the Jane Farm. Because the drainage now
discharged upstream of the Jane Farm, the ditch itself also caused elevated water levels
and a slight increase in velocity during some floods.

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Kevin and Wayne Thorpe testified about flooding on the Jane Farm before the
ditch work in 2011. According to the Thorpes, the Marmaton River periodically floods
the Jane Farm. Before the 2013 flood, however, the Marmaton River would gently back
up from further downstream. The water would then backfill into the field from the south,
rising and falling slowly. No floods scoured the ground or washed away the topsoil
before the 2013 flood.

The Thorpes described the soil on the Jane Farm before the 2013 flood. At that
time, the Jane Farm was very productive and had good soil. The farm was "bottom
ground," consisting of more and deeper topsoil than other land. The Thorpes regularly
fertilized the field and built up a nutrient base in the topsoil. Previously, the area affected
by the flood was the most productive land on the Jane Farm.

Griffiths testified about his observations during the 2013 harvest. When Griffiths
began harvesting the Jane Farm, he believed there would be a good yield. He estimated
the unaffected farmland produced more than 50 bushels per acre. However, as Griffiths
continued combining, he noticed the soybeans closer to the river were knocked flat and
covered with mud. Griffiths notified the Thorpes about his discovery. Kevin went to the
Jane Farm and observed the fallen soybean plants. He had never seen his soybean crop
knocked over by prior floods. Based on comparing the farm's soybean yields before and
after the 2013 flood, Kevin calculated $27,000 in crop losses.

When Kevin disked the Jane Farm after harvest, he discovered the flood removed
topsoil in areas and the ground contained washes and holes. In fact, about 16 inches of
topsoil had been washed out in some areas. Kevin believed the value of the lost topsoil
was $50,000.

Dengel testified that she discovered the Trust's outflow pipe on her property in
2014. Dengel had not given anyone permission to construct the outflow. By the time of
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trial, the soil under the outflow pipe had eroded, causing a large gap between the pipe and
the ground. Kevin also described the erosion around the outflow pipe. He testified that
since the outflow construction, the erosion on the riverbank has significantly increased
causing the riverbank to cave in and trees to fall into the river. Because the riverbank has
eroded by several feet, the water can reach the Jane Farm before flood stage.

Kevin testified that he buys land and is familiar with land prices around the Jane
Farm. Based on his knowledge, Kevin estimated the Jane Farm would have been worth
$3,500 per acre before the ditch work and 2013 flood. With the ditch, berm, and outflow
pipe in place, Kevin estimated the land is now worth only $2,000 per acre.

In his own defense, Kraft testified that he hired Burkhart to clean out the existing
ditch. Kraft believed Burkhart was an expert and he was confident in his ability to
perform the work. The goal of the ditch work was to drain the water pooling on the Kraft
Farm into the Marmaton River. When the work was performed, however, Kraft did not
know the outflow pipe extended onto the Sunflower property.

Kraft testified that he did not intend to create any harmful conditions or deflect
any floodwater onto neighboring properties. Moreover, he claimed to have no knowledge
that the work would affect floodwater or damage the Jane Farm. On the contrary, Kraft
testified that he believed the ditch work would help the neighboring land in addition to
the Kraft property.

Burkhart also testified that he had no intent to harm other properties when he
performed the ditch work. Instead, Burkhart believed his work improved the drainage for
the entire area, including the Jane Farm. Moreover, Burkhart did not believe the ditch
work had any effect on Jane Farm and, if anything, he thought it kept flood water from
entering the Thorpes' farmland.

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During trial, the Trust moved for judgment as a matter of law. The Trust
contended the Thorpes failed to prove the elements of intent, causation, and damages.
The district court denied the Trust's motion.

At the close of the trial evidence, the district court held an instructions conference.
At this conference, a dispute arose regarding whether the Thorpes were limited to
presenting an intentional nuisance claim to the jury. The district court ultimately
determined that, given their contentions in the pretrial order, the Thorpes were limited to
submitting claims for intentional nuisance and intentional trespass.

The jury rendered a verdict in favor of the Thorpes and awarded them $82,780 in
damages. On a special and itemized verdict form, the jury determined the Trust
committed both an intentional nuisance and an intentional trespass.

After the adverse verdict, the Trust renewed its motion for judgment as a matter of
law or new trial. The district court denied the Trust's renewed motion finding there was
sufficient evidence to prove intentional nuisance and intentional trespass, causation, and
damages. The district court also found no error in the instructions submitted to the jury.

The Trust appeals.

DENIAL OF THE TRUST'S MOTION FOR JUDGMENT AS A MATTER OF LAW

On appeal, the Trust contends the district court erred by denying its motion for
judgment as a matter of law because the Thorpes failed to present evidence establishing
intentional conduct.

Similarly, in the district court, the Trust contended the Thorpes failed to show the
necessary element of intent to prove both nuisance and trespass. The Thorpes responded,
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in part, contending that they pled alternative theories of nuisance. They asserted that, in
addition to intentional nuisance, they also made a claim for "regular ordinary nuisance."
After hearing the parties' arguments, the district court denied the Trust's motion.

During the instructions conference, the Thorpes' attorney, Zackery E. Reynolds,
noted, "[T]his is a nuisance case. The jury could find that there was an ordinary nuisance,
or it could find that there is an intentional nuisance." The district judge interjected,
"Whoa, whoa, whoa. Mr. Reynolds, you pled in your Petition intentional nuisance and
intentional trespass. You didn't plead ordinary nuisance." Reynolds responded that the
Thorpes pled nuisance and trespass in the pretrial order, and that they could assert
alternative theories. Reynolds continued, "[E]ven in the instructions that were submitted
at the time of the pretrial conference, we submitted ordinary negligence instructions."

After considering Reynolds' response, the district judge ruled:

"I am looking at the Pretrial Order. You've got, 'Defendant's actions constitute a
nuisance and a trespass.' Next paragraph, 'Defendant's actions were intentional and in
reckless disregard for the plaintiffs' rights as a lower landowner.'
"I think you're limited to 'intentional trespass' and 'intentional nuisance.'"

During this discussion, the Trust argued that the Thorpes raised only a private
nuisance claim, which required proof of intentional conduct: "Mr. Reynolds has not pled
an ordinary negligence case. He can't plead . . . an ordinary nuisance claim based on
negligence because it's a private nuisance, which is an intentional tort."

After considering the parties' arguments, the district court ruled the Thorpes could
only submit a claim for an intentional private nuisance. In particular, the district judge
found that "a private nuisance is an intentional tort. I can't see, Mr. Reynolds, that there's
any and/or private nuisance, anything less than intentional tort."
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After the adverse jury verdict, the Trust renewed its motion for judgment as a
matter of law or new trial. In its motion, the Trust claimed the Thorpes failed "to present
any evidence of intent—an essential element of both intentional tort claims."

In a lengthy and detailed written order, the district court denied the Trust's posttrial
motion. First, the district court identified the claims it allowed the jury to consider:

"Claims plead
"Plaintiffs plead two causes of action, intentional trespass and nuisance. All
parties agree that trespass is an intentional tort. There continues to be disagreement
between the parties on whether plaintiffs plead only intentional nuisance. Plaintiffs argue
that [they] did not plead only intentional nuisance and cite[] the pretrial order as evidence
of the same. The Court has reviewed the February 18, 2016 Pretrial Order and finds that
there [are] no allegations of the defendant's negligent behavior in the Pretrial Order.
During the course of this case, the Court has made several rulings referencing that the
plaintiffs have plead intentional nuisance only. Therefore the following analysis will view
the sufficiency of the evidence presented to sustain the verdict on Intentional Nuisance
and [Intentional] Trespass."

Next, the district court summarized the Trust's reason for contending that the
Thorpes' evidence was insufficient to submit to the jury. According to the district court:

"As to nuisance, Defendant is not arguing that there was no interference with the use and
enjoyment of the land, that the harm was not substantial, or a nature or duration that it
constituted unreasonable interference with the use of the land. They are arguing that there
was no evidence presented of intent. As to trespass, Defendant is not arguing that a
foreign matter didn't enter onto the Thorpe[s'] land. Defendant is arguing that there was
no evidence that the Defendant[] intended the entry or the harm and that there was no
evidence that the act of entry was purposeful or substantially certain to occur."
(Emphases added.)

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After summarizing the circumstantial evidence tending to establish the Trust's
intent, the district court ruled that "[a] reasonable jury could conclude that Defendant
knew that its action was substantially likely to harm the Plaintiffs' land; a lower land
owner."

On appeal, the Trust argues that both nuisance and trespass—as pled by the
Thorpes and submitted to the jury—required proof of intent in order to establish liability.
The Trust then asserts there is no evidence to show that it purposefully harmed the Jane
Farm or that it knew with substantial certainty the ditch work would harm the Thorpes'
property.

In response, the Thorpes submit they were not required to prove intentional
conduct as part of their nuisance claim. Alternatively, the Thorpes argue they presented
sufficient evidence establishing the Trust's intent to interfere with or discharge foreign
matter onto the Jane Farm, as required to prove both intentional nuisance and intentional
trespass.

We begin our analysis with a brief summary of the relevant standards of review
relating to Kansas district courts and appellate courts. When ruling on a motion for
directed verdict, the trial court must resolve all facts and inferences that may reasonably
be drawn from the evidence in favor of the party against whom the ruling is sought.
When reasonable minds could reach different conclusions based on the evidence, the
motion must be denied. The appellate court must apply a similar analysis when reviewing
the grant or denial of a motion for judgment as a matter of law. Siruta v. Siruta, 301 Kan.
757, 766, 348 P.3d 549 (2015); City of Neodesha v. BP Corporation, 295 Kan. 298, 319,
287 P.3d 214 (2012).

The district court's decision on a motion for judgment as a matter of law is
reviewed de novo determining "whether evidence existed from which a reasonable jury
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'could properly find a verdict for the nonmoving party.' [Citation omitted.]" Siruta, 301
Kan. at 766. When a verdict is challenged for insufficiency of evidence or as being
contrary to the evidence, an appellate court does not reweigh the evidence or pass on the
credibility of the witnesses. If the evidence, when considered in the light most favorable
to the prevailing party, supports the verdict, the verdict will not be disturbed on appeal.
Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 407, 266 P.3d 516 (2011).

At the outset, we address the Thorpes' argument that "[n]o evidence of intent was
required for any ordinary nuisance case. . . . There was more than adequate evidence on
ordinary nuisance, and this was sufficient to justify the verdict." In reply, the Trust
complains that the Thorpes are impermissibly raising a new issue for our review. In
particular, they argue that because the Thorpes did not cross-appeal the district court's
adverse ruling that they only pled intentional negligence, our court "does not have
jurisdiction to review the trial court's ruling requiring proof of intent as a necessary
element of Plaintiffs' nuisance claim—a ruling that was adverse to Plaintiffs and made
over their objections."

What are the essential features of a nuisance claim? As a general matter:

"A nuisance is an annoyance, and any use of property by one which gives offense
to or endangers life or health, violates the laws of decency, unreasonably pollutes the air
with foul, noxious odors or smoke or obstructs the reasonable and comfortable use and
enjoyment of the property of another may be said to be a nuisance." Culwell v. Abbott
Construction Co., 211 Kan. 359, Syl. ¶ 1, 506 P.2d 1191 (1973).

More specifically, in Kansas law there are two general types of nuisance: private
nuisance and public nuisance. "A private nuisance is a tort relating to an unlawful
interference with a person's use or enjoyment of his [or her] land." 211 Kan. 359, Syl. ¶ 2.
A public nuisance, on the other hand, is predicated on an infringement of the rights of the
community at large and affects an interest common to the general public. 211 Kan. at
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362. The two concepts can overlap, in that a public nuisance may amount to a private
nuisance when it interferes with an individual landowner's enjoyment of their land. 211
Kan. at 364. To be actionable, the nuisance must be the proximate cause of the injury and
damage for which the plaintiff seeks recovery. Baldwin v. City of Overland Park, 205
Kan. 1, 6, 468 P.2d 168 (1970).

A private nuisance action—as was pled here—may be brought on a theory of
intentional conduct, negligence, or strict liability. Sandifer Motors, Inc. v. City of Roeland
Park, 6 Kan. App. 2d 308, 315, 628 P.2d 239 (1981). Our Supreme Court has explained
that nuisance is a field of tort liability defined by a result, which may be caused by
conduct of differing levels of culpability. Smith v. Kansas Gas Service Co., 285 Kan. 33,
46-47, 169 P.3d 1052 (2007). In Smith, the Supreme Court reiterated:

"'Nuisance is a field of tort liability rather than a type of tortious conduct. Nuisance has
reference to the interests invaded, to the damage or harm inflicted, and not to any
particular kind of act or omission which has led to the invasion. Professor Prosser
concludes that the attempt frequently made to distinguish between nuisance and
negligence, for example, is based entirely upon a mistaken emphasis based upon what the
defendant has done rather than the result which has followed, and forgets completely the
well-established fact that negligence is merely one type of conduct which may give rise
to a nuisance. In other words a nuisance may result from conduct which is intentional or
negligent or conduct which falls within the principle of strict liability without fault. The
point is that nuisance is a result and negligence is a cause and they cannot be
distinguished otherwise.' [Citation omitted.]" 285 Kan. at 46-47 (quoting Culwell, 211
Kan. at 364).

As the Thorpes correctly assert, a private nuisance claim does not necessarily
require proof of intent. In this regard, the district court incorrectly found that a private
nuisance may only result from intentional conduct. That said, the district court
specifically and repeatedly determined that, based on the pretrial order, the Thorpes had
asserted a theory of liability based only on an intentional private nuisance.
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Importantly, the Thorpes failed to cross-appeal the district court's adverse ruling
that they brought a private nuisance claim as an intentional tort. This failure is
consequential. K.S.A. 2018 Supp. 60-2103(h) requires an appellee to file a notice of
cross-appeal from adverse rulings to obtain appellate review of those issues. Lumry v.
State, 305 Kan. 545, 553-54, 385 P.3d 479 (2016). "When an appellee desires to have a
review of rulings and decisions made by the district court, the appellee must file a cross-
appeal; otherwise, the issue is not properly preserved." Turner v. Kansas Dept. of
Revenue, 46 Kan. App. 2d 841, 846, 264 P.3d 1050 (2011).

The Thorpes' failure to file a cross-appeal creates a jurisdictional bar that prevents
our court from reviewing the district court's adverse ruling. See Lumry, 305 Kan. at 555.
The district court's ruling that the Thorpes were required to prove intent as part of their
private nuisance claim may not be disturbed on appeal. As a result, with regard to the
private nuisance claim, we will only consider whether there was sufficient trial evidence
to prove the Thorpes engaged in an intentional tort.

Turning to the Thorpes' trespass claim, we first observe that this tort may also be
intentional, the result of negligence, or based on strict liability when the defendant
engages in an abnormally dangerous activity. Lofland v. Sedgwick County, 26 Kan. App.
2d 697, 699, 996 P.2d 334 (1999). Neither party, however, suggests the Thorpes engaged
in negligent or abnormally dangerous conduct in committing a trespass. And as the
district court concluded, at trial both parties were in agreement that the trespass claim
was based on intentional conduct. As a result, the Thorpes were required to prove their
claim that the trespass was intentional. See United Proteins, Inc. v. Farmland Industries,
Inc., 259 Kan. 725, 729, 915 P.2d 80 (1996) ("Kansas has recognized intent is an element
of a claim for non-negligent intrusion upon the land of another.").

Finally, the Thorpes' claims of intentional nuisance and intentional trespass
"require proof of the same kind of intent." Lofland, 26 Kan. App. 2d at 699. Accordingly,
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we will examine whether there was sufficient evidence of intent from which a reasonable
jury could render a verdict for the Thorpes based on the Trust's intentional conduct which
caused a trespass or private nuisance.

To support a claim of intentional trespass, a plaintiff must show the defendant was
intentionally on any part of the plaintiff's land. United Proteins, 259 Kan. 725, Syl. ¶ 5.

"When a claim of trespass is based on a foreign matter intruding on the plaintiff's land,
the plaintiff must show that the defendant intended the foreign matter to intrude on the
plaintiff's land or that the defendant performed the act with knowledge that the act would,
to a substantial certainty, result in the foreign matter entering the plaintiff's land." Muhl v.
Bohi, 37 Kan. App. 2d 225, 229-30, 152 P.3d 93 (2007).

Performing an act which will almost certainly result in foreign matter entering on
another's land suffices for an intentional trespass to land, regardless of an intent to harm
other property. United Proteins, 259 Kan. at 730. Thus, consistent with other intentional
torts, trespass requires the plaintiff show an entry was either purposeful or substantially
certain to occur. 259 Kan. at 730.

Similarly, like trespass, intentional nuisance requires that the defendant act with
the purpose of causing the nuisance or know it is substantially certain to result from his or
her conduct. 259 Kan. at 732. As our Supreme Court stated long ago:

"'It is not enough to make an invasion intentional that the actor realizes or should realize
that his conduct involves a serious risk or likelihood of causing an invasion. He must
either act for the purpose of causing it or know that it is resulting or is substantially
certain to result from his conduct.'" 259 Kan. at 733 (quoting Restatement [Second] of
Torts § 825, comment c [1965]).

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The Trust argues that the defendant's knowledge or purpose at the time of the
underlying act determines whether the resulting invasion was intentional. See Sandifer
Motors, 6 Kan. App. 2d at 318. The defendant's mere knowledge that an entry occurred,
by itself, does not establish a claim for trespass or intentional nuisance under a theory of
constructive intent. United Proteins, 259 Kan. 725, Syl. ¶ 6. That said, a verdict may be
supported by circumstantial evidence if that evidence provides a basis for a reasonable
inference by the fact-finder on the fact at issue. Circumstantial evidence, to be sufficient,
need not exclude every other reasonable conclusion. Siruta, 301 Kan. at 767. Intent may
be established through circumstantial evidence and does not need to be directly proven.
Jones v. Kansas State University, 279 Kan. 128, 142, 106 P.3d 10 (2005).

The district court determined that, based on circumstantial evidence, a reasonable
jury could conclude that by draining more than 200 acres directly above the Jane Farm
and constructing a 6-foot berm, the Trust knew with substantial certainty that the project
would cause additional flooding on the Thorpes' land. Moreover, the district court
concluded that the "way that the ditch/berm/levee was constructed with the 30 inch [in
diameter] drainage pipe, that common sense would tell them that constricting the flow of
water into the 30 inch pipe increased the velocity of the water and caused the scouring of
the Thorpe[s'] property." The district court also found evidence of intentional conduct by
the Trust entering the Sunflower property to construct the outflow pipe and taking almost
three years to comply with directives from Kansas governmental authorities.

On appeal, the Thorpes reprise the district court's reasons in support of a finding of
intentional conduct. The Thorpes also remind us that "[i]ntent is rarely susceptible of
direct proof" and analogize to criminal cases involving specific intent for the proposition
that "[r]easoned inferences from circumstantial evidence will support a jury verdict which
required proof of intent."

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On the other hand, the Trust asserts the only circumstantial evidence relating to the
ditch work counters the notion that the Trust acted with the required intent. In particular,
the Trust highlights that the ditch work did not occur on the Thorpes' property, the flood
damage occurred about two years after the ditch work, the Thorpes did not claim any
additional flood damages in the four years after the 2013 flood, and the Thorpes' expert,
Lett, testified the ditch work would not affect Jane Farm unless there was a storm event
greater than a 10 year storm, and a storm of that magnitude may not happen for 20 years.
As a result, the Trust concludes that there was no direct or circumstantial evidence that it
acted with the purpose of intentionally causing a trespass or nuisance, or that the Trust
knew that flooding was substantially certain to result from the ditch work in 2011.

Upon our review of the record, in the light most favorable to the Thorpes, we are
persuaded that no reasonable jury could conclude the Trust acted with the purpose of
causing the trespass or nuisance, or know it was substantially certain to result from the
Trust's conduct in constructing the ditch and berm.

At the outset, the only direct testimony relating to the Trust's intent in performing
the ditch work was Kraft's testimony that he did not intend to create any harmful
conditions or deflect any floodwater onto neighboring properties, including the Jane
Farm. Instead, Kraft testified that he believed the ditch work would help protect the
Trust's property and adjoining land from floodwaters. Similarly, Burkhart also testified
that he had no intent to harm other properties when he performed the ditch work. On the
contrary, Burkhart thought his work improved the drainage for the nearby area, including
protecting the Jane Farm from floodwater.

In the view of the district court and the Thorpes, "common sense" played an
important role in establishing circumstantial evidence of the Trust's actionable intent. The
district court noted the project was constructed to divert considerable floodwater into a
30-inch outflow pipe from which the court inferred the Trust had to know it would result
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in increasing the velocity of the water and cause flooding on the Jane Farm. On the other
hand, the Trust emphasizes that from the nature of the project—in particular, the fact that
the ditch was designed to funnel water to the outflow pipe located on Sunflower land and
directly into the Marmaton River—a reasonable jury could not conclude that the Trust
intended to have water trespass onto the Jane Farm, create a nuisance on it, or know that
such a consequence was substantially certain to result. We are persuaded that the Trust
has the better argument.

Kansas cases support our conclusion that there was insufficient evidence of intent
to sustain the jury's verdict. In Sandifer Motors, a landowner sued the City of Roeland
Park, claiming that a nuisance maintained by the city on adjoining property caused the
plaintiff's business to sustain flood damage. The plaintiff alleged the city used the
adjoining property as a dump, and debris from the dump caused the landowner's drainage
system to clog and burst during a heavy rain.

The Sandifer Motors court held there was insufficient evidence of intent to support
an intentional nuisance claim. 6 Kan. App. 2d at 318-19. Although the city was aware of
debris washing onto the plaintiff's land, none of the prior problems were as serious as the
flooding. Our court concluded: "[T]he city simply dumped where it should not have.
There is nothing to indicate it intended to damage the plaintiff, or that the injury was
substantially certain to occur. At best, the evidence showed only that the city's conduct
created a condition posing an undue risk of harm." 6 Kan. App. 2d at 319.

Years later, our court came to a similar conclusion in Lofland. The plaintiffs in
Lofland sued Sedgwick County after the county's sewage system failed and caused raw
sewage to back up into their homes. When it designed the sewage system, the county
knew sewage would back up into the plaintiffs' homes if the sewage pump and backup
system failed. Yet this court rejected the argument that the county possessed the requisite
intent just because the county knew the sewage system was not foolproof. Instead, the
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Lofland court determined that the plaintiffs failed to present "sufficient evidence to
establish that the County acted in any manner evidencing knowledge that a sewage
backup would occur or that there was a substantial certainty such an event would occur."
26 Kan. App. 2d at 705.

Returning to the case on appeal, the Trust performed the ditch work to drain water
accumulating on the Kraft property into the Marmaton River. The evidence of the berm
shows that the Trust sought to protect its own property from flooding. Although the
outflow pipe was nearby the Jane Farm, there was no evidence presented that the Trust
had the purpose or intent to interfere, intrude, or otherwise exacerbate the flooding on the
Jane Farm. Rather, the evidence shows a purpose to drain the water directly into the river
rather than onto adjoining property.

The Thorpes assert "[a] natural consequence of erecting a ditch and levee is to
block and redirect water." As a result, the Thorpes claim a reasonable person would know
the ditch work would obstruct the floodplain in a way that water was substantially certain
to invade the Jane Farm. The evidence that the Trust redirected drainage near the Jane
Farm may indicate the Trust realized or should have realized its conduct involved a risk
of causing flooding on the Jane Farm. But the critical issue in this intentional tort case is
whether a reasonable jury could determine that the Trust knew the ditch work would, to a
substantial certainty, result in increased flooding on the Jane Farm. See United Proteins,
259 Kan. at 733.

In contrast to the ditch work involved in this case on appeal, the intentional
conduct identified in United Proteins involved the operation of a fertilizer plant which
released chemicals that contaminated the aquifer under the property owned by United
Proteins. In this regard, the present case is similar to Sandifer Motors, because it involves
a specific incident stemming from a condition that existed for more than a year.
Moreover, like the sewage system's potential to back up in Lofland, any knowledge by
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the Trust that increased flooding may potentially occur under certain circumstances in the
future does not constitute intentional tortious conduct. See United Proteins, 259 Kan. at
733.

The Thorpes additionally argue, as the district court concluded, that the Trust's
intent to trespass and cause a nuisance was further evidenced by the trespass on the
Sunflower land and the Trust's interactions with regulatory agencies. The Thorpes assert
the Trust's trespass on the Sunflower land to construct the outflow pipe "shows that
Defendant does not care whether it causes damage to its neighbors." And the Thorpes
point to evidence that the Trust ignored the Division of Water Resources' letters and lied
to the Army Corps of Engineers about an easement agreement with Dengel to maintain
the outflow pipe. The Thorpes suggest this evidence shows the Trust tried to conceal its
involvement and was "clear evidence of intent." We disagree.

The trespass on the Sunflower land and any misbehavior with regulatory agencies
evidences no intent to increase flooding on the Jane Farm. Assuming the trespass was
known to the Trust, it may suggest the Trust was willing to violate neighboring
landowners' property rights to drain excess water from the Kraft property. That said, the
unauthorized construction of the outflow pipe does not show that the Trust intended
foreign matter to intrude on the Jane Farm. In fact, the outflow pipe was pointed away
from the Jane Farm. Moreover, the Trust's communications with governmental agencies
after the 2013 flood does not reveal the Trust's purpose, knowledge, or intent when
constructing the ditch in 2011. See 6 Kan. App. 2d at 317-18.

In conclusion, while the evidence may show the Trust's ditch project created an
undue risk of harm, this is insufficient to prove intentional nuisance and trespass, "which
limits liability to egregious circumstances." Lofland, 26 Kan. App. 2d at 705. Even in a
light most favorable to the Thorpes, we hold there was insufficient evidence to support a
finding of intent on the Thorpes' tort claims. Because the Thorpes failed to prove an
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element of their claims, the district court erred by denying the Trust's motion for
judgment as a matter of law.

Given our holding, we decline to address the additional grounds raised by the
Trust on appeal which, it argues, also support its motion for judgment as a matter of law
or new trial.

Reversed and remanded with directions to grant the Trust's motion for judgment as
a matter of law.