Aladdin Petroleum Corp. v. Gold Crown Properties, Inc.

• Decision Date: 05 March 1977
• Docket Number: No. 48127,48127
• Citation: 221 Kan. 579,561 P.2d 818
• Parties: ALADDIN PETROLEUM CORPORATION, Appellant, v. GOLD CROWN PROPERTIES, INC., et al., Appellees.
• Court: Kansas Supreme Court

Page 818

561 P.2d 818

221 Kan. 579

ALADDIN PETROLEUM CORPORATION, Appellant, v. GOLD CROWN PROPERTIES, INC., et al., Appellees.

No. 48127.

Supreme Court of Kansas.

March 5, 1977.

Syllabus by the Court

1. Where the width, length and location of an easement for ingress and egress have been expressly set forth in the instrument the easement is specific and definite. The expressed terms of the grant or reservation are controlling in such case and considerations of what may be necessary or reasonable to a present use of the dominant estate are not controlling.

2. Construction of carports or other permanent obstructions over a portion of an easement for passage of a definite width wrongfully impairs and interferes with the privilege of passage which the owner of the definite easement holds.

3. In a claim filed to establish and enforce an easement for ingress and egress and for a mandatory injunction, the record is examined and it is held: (1) The easement established was definite as to width, length and location and granted the holder of the dominant estate a right of passage over the entire width, (2) permanent carports were wrongfully constructed over the easement, and (3) a mandatory injunction should be granted to require their removal.

Robert L. Howard, Foulston, Siefkin, Powers & Eberhardt, Wichita, argued the cause, Phillip S. Frick, Wichita, was with him on the brief for appellant.

Edward J. Jund, Jr., Smith, Shay, Farmer & Wetta, Wichita, argued the cause, William C. Farmer and Paul V. Smith, and Blair, Matlack, Rogg, Foote & Scott, Wichita, were with him on the brief for appellees.

FROMME, Justice:

The questions presented by this appeal concern the extent and nature of a private right-of-way easement reserved by the grantor or seller in a real estate purchase agreement. The real estate was purchased for the construction of a high-density apartment complex. The apartment complex was built. Disagreement then arose and this action was filed by the grantor. The grantor, Aladdin Petroleum Corporation, was largely owned and controlled by George H. Bruce, its president.

The names and interests of the defendants in this action are confusing. Gold Crown Properties, Inc. is the purchaser-grantee named in the real estate purchase agreement. It is a wholly owned subsidiary of Gold Crown, Inc. The real estate was conveyed by warranty deed to Gold Crown, Inc., and later transferred to Presidential Woodgate, a partnership.

Presidential Woodgate is a general partnership consisting of Gold Crown, Inc., Presidential Realty Corporation and M. Shapiro and Son, Inc. Presidential Woodgate is now the owner of the real estate and it constructed and owns the apartment complex. In order to avoid any confusion of parties in discussing the case we will refer to Gold Crown Properties, Inc., Gold Crown, Inc., and Presidential Woodgate, the present owner, as the grantees both individually and collectively.

The additional defendants in the case are Steve Schuetz, president of Gold Crown, Inc., and the vice-president of Gold Crown Properties, Inc., and Commerce Mortgage Company, a Missouri corporation which financed and now holds a construction mortgage on the real estate and apartment complex.

So much for the parties-we now turn to the facts giving rise to the claims of the grantor, Aladdin Petroleum Corporation. The grantor was the owner of a 20 acre tract of land in Wichita, Kansas, described as the East half of the Southeast quarter of the Southwest quarter of Section 1, Township 27 South, Range 1 East of the Sixth P.M. It was bounded on the south by 21st Street. There were no access roads on the west, north and the east of this tract. The grantees wanted to acquire the south half of this tract to construct the apartment complex. The grantor requested an easement or easements for ingress and egress to the north 10 acres which he did not sell. When the contract for sale of the south 10 acres was being negotiated the parties agreed that two rows of trees that were growing along the west side of the land being sold should be preserved. It was agreed an easement between these two rows of trees from 21st Street north to the north 10 acres would be reserved by grantor for ingress and egress. The parties further agreed if the design of the apartment complex allowed (as it eventually did) a similar easement would be reserved by grantor along the east 60 feet of the acreage being sold. When the contract was drawn no measurements had been made and none of the parties knew how much land was between the west property line and the inside row of trees. All parties agreed that 60 feet should cover the space from the west property line to and including the two rows of trees.

The contract when signed included the following paragraph:

'It is further agreed between the parties hereto that in the event the sale of the property described in paragraph one above is consummated Seller shall reserve the right of ingress and egress along and across approximately the west 60 feet of said property, which easement shall be between the two rows of trees running north and south along the west side. Said easement shall be a perpetual easement and right-of-way for the benefit of thos(e) parties desiring access to that property described in paragraph 1 above. In addition thereto, Seller hereby reserves a similar easement along the east 60 feet of the property described in paragraph 1 above. Provided, however, that in the event Buyer is unable to design a plot plan for the property described in paragraph 1 above to accommodate 184 garden apartments and 41 townhouse apartments then said easement along the east side of said property shall cease and determine. Said easements reserved by Seller shall not be effective and shall cease and determine if the property described in paragraph 7 above is utilized and/or zoned for industrial use.' (Emphasis supplied.)

The parties agree that reference in this paragraph to 'property described in paragraph 1 above' actually refers to the north 10 acres which grantor continues to own.

It was understood that zoning would have to be changed to permit the building of the apartment complex. A plat was submitted to the Wichita-Sedgwick County Metropolitan Area Planning Department by an engineering firm employed by the grantees. The plat, as originally drawn, referred to the 60 foot easements described in paragraph 8 of the contract. The engineering firm was advised by the planning department that 'The reference to the private ingress-egress agreement and easement shall be deleted from the plattor's text.' Copies of the letter were sent to grantor and grantees. The reference to the private easements was deleted and the plat detailing the location of the apartment complex was resubmitted and approved by the planning department. George H. Bruce, for the owner, signed the application for zoning change.

There is a conflict in the evidence as to just what happened when the sale was finally closed and the deed was delivered to the grantees. A separate agreement reserving the easement was never drawn. The deed of conveyance erroneously included the entire 20 acres and made reference in a general way to easements of record. However, the contract had not been recorded.

After the deed had been delivered and construction had begun, disagreements arose between grantor and grantees. The error in the deed of conveyance was discovered. The grantees began building carports on the easement between the two rows of trees. Approximately the west 20 feet of the easement was being covered by permanent carports to be used by the persons living in the apartment complex. Between the carports and the inside row of trees a strip 24 feet in width was provided for ingress and egress. It was designated on the plat as a fire lane easement. A fire lane easement of that width was required by the Wichita building code. By separate oral agreement the grantees were to use an additional acre of the land retained by the grantor for use as a storage yard during construction. Grantor claimed that grantees had failed to fence the one acre tract as agreed and were occupying additional portions of the land which they did not own and which they refused to vacate.

The present action was filed by grantor and all claims were tried to the court. Detailed findings of fact and conclusions of law were made by the trial court. The grantor now appeals only from that portion of the judgment which deals with the easements. Its claim is for specific performance of paragraph 8 in the contract and for an injunction against the building of carports upon the easements.

In the journal entry the court held:

'A. The plaintiff, Aladdin Petroleum Corporation, is hereby granted an easement for ingress and egress which easement shall be 44.44 feet in width and is legally described as follows, to-wit:

'Beginning at a point 12.5 feet east of the northwest corner of Lot 1, Block 1, Woodgate Second Addition to Wichita, Sedgwick County, Kansas, thence south 663.86 feet, thence east 44.44 feet, thence north parallel with the west line of said Lot 1, 663.86 feet more or less to a point on the north line of said Lot 1, 56.94 feet east of the northwest corner thereof, thence west along the north line of said Lot 1 to point of beginning.

'Plaintiff, Aladdin Petroleum Corporation is hereby granted a further easement for ingress and egress which easement shall be 44.78 feet wide and is legally described as follows, to-wit:

'Beginning at a point 9.33 feet west of the northeast corner of Lot 1, Block 1, Woodgate Second Addition to Wichita, Sedgwick County, Kansas, thence south 664.35 feet, thence west 44.78 feet, thence north parallel with the east line of said Lot 1, 664.35 feet more or less to a point on the north line of said Lot 1, 54.11 feet west of the northeast corner of said Lot 1, thence east along the north line of said Lot 1 to the point of beginning.'

The first description of...