Sebree v. Board of County Com'rs of County of Shawnee

• Decision Date: 30 October 1992
• Docket Number: No. 66968,66968
• Parties: Robert J. and Regina M. SEBREE, Appellants, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF SHAWNEE; Orville Dreasher, Jr.; Geraldine Dreasher; Ed Southall; and State of Kansas Department of Transportation, Appellees.
• Court: Kansas Supreme Court

Page 1125

840 P.2d 1125

251 Kan. 776

Robert J. and Regina M. SEBREE, Appellants, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF SHAWNEE;

Orville Dreasher, Jr.; Geraldine Dreasher; Ed

Southall; and State of Kansas

Department of Transportation, Appellees.

No. 66968.

Supreme Court of Kansas.

Oct. 30, 1992.

Syllabus by the Court

1. The common-law right of access requires two elements. The persons claiming the right must own land abutting a street or highway which must be a public street or highway. The right of access is an easement appurtenant which runs with the land. The right of access extends to the property owner's patrons, clients, and customers.

2. A party seeking summary judgment bears a heavy burden. The trial court is required to resolve all inferences which may reasonably be drawn from the evidence in favor of the party against whom summary judgment is sought. Summary judgment is proper where the pleadings depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The party opposing summary judgment has the affirmative duty to come forward with facts to support its claim, although it is not required to prove its case. If factual issues exist, they must be material to the case to preclude summary judgment.

3. The owner of property which abuts an existing street or highway has two distinct kinds of rights in a highway, a public right which the owner enjoys in common with all other citizens, and certain private rights which arise from ownership of property contiguous to the street or highway, and which are not common to the public generally. Such private rights include certain easements appurtenant, such as the right of access, view, light, and air. These are property rights which cannot be taken from the owner without the owner's consent, except by due process with full compensation.

4. A person claiming a right of access to a public road must be an abutting landowner. "Abut" means to touch and thus, even if the person's property touches the public road at only one point, he or she is an abutting landowner. Furthermore, the person's property need abut only the right-of-way for the public road to give rise to the right of access.

5. The reason for the right of access rule is necessity. Necessity, however, is not an element of the common-law right of access. The right of access to and from an existing public street or highway is one of the incidents of ownership of the land abutting thereon.

6. In a quiet title action, the court has jurisdiction only of issues pertaining to the property for which quiet title is sought.

Stephen P. Weir, of Carpenter, Weir & Myers, Chtd., of Topeka, argued the cause, and Mary D. Feighny, of the same firm, was with him on the briefs, for appellants.

Jeffrey A. Chanay, of Entz & Chanay, of Topeka, argued the cause, and Michael D. Strong, of the same firm, was with him on the brief, for appellees.

HERD, Justice:

Robert J. and Regina M. Sebree brought this action to quiet title, to recover damages for trespass, and to obtain injunctive relief. The district court granted summary judgment against the Sebrees and ruled that although the Sebrees own the fee title to the property in question, it is subject to Geraldine and Orville Dreasher's right of access over the county-held right-of-way to old U.S. Highway 40. The Sebrees appealed to the Court of Appeals, which affirmed the district court. Sebree v. Board of Shawnee County Comm'rs, 16 Kan.App.2d 772, 829 P.2d 610 (1992). We granted the Sebrees' petition for review.

In 1870, the Kansas Legislature enacted a statute which provided for several roads to be established throughout the state, including a road from Lawrence to Topeka. This proposed road cut diagonally across the Northwest Quarter of Section 4, Township 12 S, Range 17 E, Shawnee County, owned by David G. Jones, the Sebrees' predecessor in title. In 1880, Jones petitioned the Shawnee County Commissioners to relocate the road and offered to grant the county a 60-foot right-of-way on the west and south quarter section lines of his property if the county would refrain from building the road diagonally across his quarter section. The county commissioners accepted Jones' grant of right-of-way and relocated the road accordingly. The road, which later become known as U.S. Highway 40, was constructed entirely upon the right-of-way, except where it was rounded off on the southwest corner of the quarter section.

In 1919, Sebrees' predecessor in title quitclaimed an additional tract of 0.17 acres of land to Shawnee County to accommodate the rounded curve. This tract is not in dispute.

Orville and Geraldine Dreasher own the Southeast Quarter of Section 5, Township 12 S, Range 17 E, Shawnee County. This land lies to the immediate southwest of the Sebrees' property and has a common corner therewith. In the early 1900's, after the road was constructed, the Dreashers' predecessors in title used a spur road to reach the highway from their property. This spur road encroaches on the Northeast Quarter of Section 5 by approximately 20 feet. This quarter is presently owned by Alice McCammon, who is not a party to this action. The Southwest Quarter of Section 4 is presently owned by Mrs. Hubbard, who also is not a party to this action. Both the McCammon and Hubbard quarter sections have a common corner with the other two quarters. See the diagram attached as an appendix.

In 1952, the State of Kansas altered the location of U.S. Highway 40 in order to straighten several curves in the vicinity of the Sebrees' property. The new Highway 40 cut diagonally through the Sebrees' property, approximately in the same location as the proposed highway of 1870. Once the highway was straightened, the old road only went from one point to another on the new road. Also in 1952, the Kansas Highway Commission withdrew the right-angled road "from the system of State Highways in Shawnee County, Kansas, with the provision that the road shall be maintained as a detour highway until such time as the herein designated route shall be completed and open to traffic."

In the summer of 1988, the Dreashers and Ed Southall, also a named defendant in this case, attempted to widen the spur road to create a larger entrance-way to the Dreashers' property where a race track is located, which Southall leased. The race track had been in operation for many years. The widening of the spur road was done without the Sebrees' permission. The Sebrees then initiated this quiet title action against the Board of County Commissioners of Shawnee County; the Kansas Department of Transportation; Rural Water District No. 8, which had laid a water line alongside the road; the Dreashers; and Southall. In addition to requesting quiet title, the Sebrees sought damages for trespass and injunctive relief to return the property to its condition prior to the alleged trespass.

In February 1989, the Sebrees moved for partial summary judgment, asking the district court to declare them to be the fee simple title holders to the old road as of 1952, when the state decided to alter Highway 40's route. The district court denied the motion, finding issues of material fact remained. In August 1989, as discovery in the case progressed, the district court granted the Sebrees a restraining order, preventing defendants from widening the spur road. The Sebrees reached a settlement with Rural Water District No. 8, which was then dismissed from the lawsuit.

In the summer of 1990, the Sebrees again moved for summary judgment against the Board of County Commissioners of Shawnee County, the Department of Transportation, the Dreashers, and Southall. Southall did not respond to the motion and the Sebrees were granted summary judgment against him. The Dreashers also moved for summary judgment, claiming their use of the spur road is based upon the common-law right of access to a public highway which is available to abutting property owners.

The district court found the Sebrees held fee title to the property at issue, subject to a right-of-way by Shawnee County for the old highway. The district court, however, held the Sebrees' title was subject to the Dreashers' right of access. The district court stated:

"The common-law right of access requires two elements: '1) The persons claiming the right must own land abutting that street or highway; 2) There must be a public street or highway.' Spurling v. Kansas State Park and Resources Authority, 6 Kan.App.2d 803, 804, 636 P.2d 182 (1981). (Emphasis in original.) The right of access 'is justified upon the grounds of necessity' and is an appurtenant easement which runs with the land. Riddle v. State Highway Commission, 184 Kan. 603, 610, 339 P.2d 301 (1959). (Citations omitted.) Additionally, the right of access extends to the property owner's 'patrons, clients and customers.' Id. Because the Dreasher property abuts Shawnee County's easement for the public road, which by definition is open to use by anyone, the Court finds the [Dreashers] have the right of access to the road by way of the spur road."

The district court further found that any portion of the spur road on the Sebrees' property is also on Shawnee County's right-of-way.

The Sebrees' motions to alter or amend the district court's memorandum decision and to assess damages for trespass against Southall were denied. The parties agreed to a permanent injunction limiting any further widening or repair of the spur road.

On appeal, the Court of Appeals found the Dreashers' property touches the right-of-way of the old highway, although it did not touch the actual road surface. When addressing the question of whether touching the right-of-way is sufficient, the Court of Appeals stated:

"The Sebrees contend that the Dreashers' property must touch the road they seek...