Armstrong v. Cities Service Gas Co.
| Decision Date | 04 November 1972 |
| Docket Number | No. 46317,46317 |
| Citation | 502 P.2d 672,210 Kan. 298 |
| Parties | Richard A. ARMSTRONG and Betty Grisham, Appellants, v. CITIES SERVICE GAS COMPANY and The Kansas Power and Light Company, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
In an action brought by landowners to eject two utility companies from their land and to quiet their title thereto, or in the alternative to recover damages for inverse condemnation by reason of the maintenance of utility facilities on their property, the record on appeal is examined and it is held the trial court did not err in entering judgment for the utility companies on the basis that under the concept of 'a belief of ownership', as provided by K.S.A. 60-503, they had acquired prescriptive rights in the realty in question.
M. Dean Burkhead and Eugene C. Riling, of Riling, Riling & Burkhead, Lawrence, argued the cause and were on the brief for appellants.
Terry L. Bullock, of Cosgrove, Webb & Oman, Topeka, argued the cause and was on the brief for appellee Kansas Power and Light Co.
Charles D. Stough, Lawrence, argued the cause, and Jack W. Wertz and George E. Peabody, Oklahoma City, Okl., were with him on the brief for appellee Cities Service Gas Co.
HARMAN, Commissioner.
Initially this proceeding was one by landowners to eject two utility companies from their land and to quiet their title thereto. Subsequently the plaintiffs sought to convert the action into one for damages for inverse condemnation by reason of the maintenance of utility facilities on their property. In trial to the court it was held that the defendant utilities had acquired prescriptive easements. Plaintiffs have appealed from the judgment against them entered on that ruling.
The evidence submitted to the trial court was in the form of depositions, affidavits, exhibits, answers to interrogatories and stipulations, and with a single exception the facts developed thereby may be said to be undisputed.
The real estate in question consists of a half-section lying east of U.S. Highway 59 immediately south of the city limits of Lawrence, Kansas. In 1915 the then owner of the tract, W. H. Armstrong, executed his will. Insofar as here material a life estate was devised to Leland O. Armstrong, grandson of the testator, subject to the right of possession, control and income from the real estate to the testator's wife, Anna M. Armstrong, for the term of her natural life. Upon termination of the life estate of Leland, the will devised the remainder to any children born to said grandson in lawful wedlock who survive him. Leland's life estate was subject to certain restrictions:
(Emphasis supplied.)
W. H. Armstrong died in 1916. Final settlement of his estate under the will was made in March, 1919, in proceedings in the probate court of Douglas county, Kansas. His widow, Anna M. Armstrong, died in April, 1919.
Leland O. Armstrong was born November 25, 1904. He is still living and was a party defendant in the trial of this action. The plaintiff-appellants are the two children born to Leland and his wife, Eleanor. Richard A. Armstrong was born December 5, 1926, and became of legal age December 5, 1947; Betty J. Grisham was born December 7, 1931, and became of legal age December 7, 1952.
The defendant-appellees, Cities Service Gas Company and the Kansas Power and Light Company, are each corporations. Cities is in the business of purchasing, transporting in an integranted pipeline system and selling natural gas in Texas, Oklahoma, Kansas, Missouri and Nebraska. KP owns and operates transmission lines for transportation and sale of electricity in Kansas. Both companies have the power of eminent domain for the purpose of acquiring land for right-of-way for construction of such lines and facilities.
In 1905 the testator, W. H. Armstrong, and his wife, Anna, granted an right-of-way easement to the Kansas Natural Gas, Oil Pipe Line and Improvement Company through the south half of the subject property and a twelve-inch pipeline was installed in that year. The easement was assigned to Cities in 1927 and the pipeline was reclaimed by it and removed from the property in late 1936 or early 1937. Upon reclaim, damages were paid by Cities to the grandson, Leland O. Armstrong. During the time the line was located through the property, a domestic tap and meter were provided for the use of gas at the principal dwelling house located upon the property. The easement and assignment were duly filed of record.
Commencing in 1929 and extending through August, 1946, Leland and his wife, Eleanor, granted to Cities two pipeline right-of-way easements and a meter and regulator lease through the north half of the subject property. In 1944 they granted an easement to Kansas Electric Power Company (later merged into KP ) for the construction and operation of an electrical transmission line over the property. These grants were perpetual and in no way limited. The first time that either Cities or KP was made aware that the grants were from a life tenant was by a letter dated December 5, 1968, from one of appellants' attorneys, two weeks prior to the filing of this action.
The first grant of a pipeline right-of-way easement to Cities was in 1929. Leland was paid for the grant of this right-of-way. A sixteen-inch gas pipeline was installed through the property under such contract in that year. Leland was also paid for crop damages in connection with installation of the pipeline. The pipeline has been continuously used for transmission of natural gas to the present time. This easement contract was mailed by a tenant on the property to Leland and his wife who were then living in California. The Armstrongs executed the instrument without any contact with Cities or a Cities representative. This easement was filed of record in 1929.
In 1939 Leland and his wife, Eleanor, executed a second right-of-way easement to Cities for the installation of a pipeline through the property and in that year a six-inch pipeline was installed extending from a point on the existing sixteen-inch pipeline through said property in a northerly direction as part of a project for transmission and delivery of gas for use by Kansas University. This pipeline has been used continuously since its installation to the present time. Leland was paid for this right-of-way grant and for damages resulting from installation of the pipeline. Prior to acquiring the easement, Cities obtained a list of names of owners of the affected realty from John C. Emick, a licensed bonded abstractor at Lawrence, Kansas. That list showed Leland as owner of the subject property. The easement was filed of record in 1939.
In August, 1942, a letter was written to Cities requesting a domestic tap for gas service from one of the pipelines running through the property. The letter bore the signature name L. O. Armstrong, and was written by Eleanor, his wife, with his consent and at his request. Additional correspondence was had regarding the furnishing of gas service for domestic use on the property. Such letters from L. O. Armstrong did not indicate any limitation of ownership to a life estate, but to the contrary, used the words 'my farm'. In 1942 a domestic meter and regulator were installed upon the sixteen-inch pipeline extending through the property and domestic gas service had been extended and utilized on it continuously since that time.
In 1943 the Kansas Electric Power Company agreed to supply electric energy to the Sunflower Ordnance Works. In connection with the construction of the transmission lines for this project it was necessary to cross the Armstrong land. Because of the size and urgency of the project and the shortage of personnel, KEPC contracted with S. A. Sulentic for the surveying of the line and the acquisition of the necessary easements for rights-of-way. Sulentic was a consulting engineer in Topeka, Kansas, and was not on the staff of KEPC. Sulentic and his employees laid out the Sunflower Ordnance line and purchased the easements for rights-of-way used in connection therewith, except such as were acquired through condemnation. Among the easements obtained by Sulentic for the line was that evidenced by a written grant of right-of-way executed by Leland O. Armstrong and his wife to the KEPC in February, 1944, covering the property in question. Leland was paid the full price for the easement which was filed of record in February, 1944.
In connection with the acquisition of such easements Sulentic obtained from Frank E. Banks, a licensed bonded abstractor doing business in Douglas county, a list of owners of the tracts of land in that county over which the transmission line was proposed to be and was subsequently constructed. A copy of this list of owners of property, from whom easements were secured by Sulentic, was furnished to KEPC, which list included the names of L. O. and Eleanor Armstrong.
Upon completion of construction of the electric transmission...
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