Sebree v. Board of County Com'rs of County of Shawnee
| Decision Date | 03 April 1992 |
| Docket Number | No. 66968,66968 |
| Citation | 829 P.2d 610,16 Kan.App.2d 772 |
| Parties | Robert J. and Regina M. SEBREE, Appellants, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF SHAWNEE, et al., Appellees. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. The standard of review for summary judgments is stated and applied.
2. Under the unique facts of this case, the question of whether a road is a public roadway is a factual question to be resolved by use of public records, evidence of record relating to the actions of public officials over the period of time involved, and evidence relating to use of the road over the period of time involved.
3. A property owner has a right of access to a public road where the owner's land abuts an express easement to the public road, even though the owner's land does not abut the public road itself.
4. The common-law right of access to real property is justified upon the grounds of necessity. The determination that the abutting landowner had no other reasonable means of reaching the public road but through the property of his adjoining neighbor was, under the circumstances of this case, a factual question resolved by the trial court. Its determination is supported by substantial competent evidence.
Stephen P. Weir of Carpenter, Weir & Myers, Chartered, Topeka, for appellants.
Jeffrey A. Chanay and Michael D. Strong of Entz & Chanay, Topeka, for appellees.
Before BRISCOE, C.J., DAVIS, J., and RICHARD W. WAHL, District Judge, Retired, assigned.
Robert and Regina Sebree appeal from the court's ruling on summary judgment that Orville Dreasher, Jr., and Geraldine Dreasher have a right of access to old U.S. Highway 40 by use of a spur road through the Sebrees' property. The court found that the Dreashers were abutting landowners to the Sebrees and had no other means of ingress and egress to their property. We affirm.
The Sebrees brought this action in 1988 seeking to quiet title against several defendants, damages for trespass, and injunctive relief. This controversy centers upon a road in Shawnee County that is located on the Sebrees' land.
In 1870, the Kansas Legislature called for several roads to be established in this state, including a road from Lawrence to Topeka. This proposed road cut diagonally through a quarter section of land now owned by the Sebrees. Their predecessor in title, David G. Jones, petitioned the Shawnee County Commissioners in 1880 to relocate the road, agreeing to grant the county a right-of-way on a 60-foot strip of land on the section lines of his property if it would not place the road diagonally through the quarter section. The county commissioners accepted Mr. Jones' grant of the right-of-way and approved the relocation of the road to the strip of land bounded on the west and south by the section lines. The road was constructed entirely upon the right-of-way, except where the southwest corner of the road was rounded off.
In 1919, the Sebrees' predecessors in title quitclaimed an additional tract of land to Shawnee County to allow the rounded curve.
After the road was constructed in the early 1900's, the Sebrees' predecessors in title gave permission to the Dreashers' predecessors in title, who owned the quarter section southwest of the Sebrees' property, to use part of their property as a path to the new road. These two sections were never owned by a common grantor. The Dreashers' predecessors in title used the path, or spur road, to reach the new road between approximately 1915 and the early 1950's. The spur road encroaches on the northwest quarter section by 20 feet. The northwest quarter is presently owned by Alice McCammon, who is not a party to this action.
In 1952, the State of Kansas altered the location of Highway 40 in order to straighten several curves in the vicinity of the Sebrees' property. The State condemned a strip of land straight through the Sebrees' property in the approximate location of the first road that had been relocated in the 1880's. Once the highway was straightened, the old road only traveled from one point on the new road to another point on the new road. (Diagram is attached for further clarification as Appendix.) Since the condemnation, the old highway has been used only with the Sebrees' permission for the homes located to the southwest of the old road and the Sebrees' property.
Also in 1952, the Kansas Highway Commission withdrew the old 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.' "
The Dreashers claim the use of the spur road based upon the common-law right of access to a public highway. In the summer of 1988, the Dreashers and Ed Southall, also a named defendant in the case, attempted to widen the spur road to install a larger entrance-way on the Sebrees' property for a racetrack located on the Dreashers' property, which Mr. Southall leased. This was done without the Sebrees' permission. The Sebrees initiated this quiet title action and also brought suit against the Board of County Commissioners of Shawnee County, the Kansas Department of Transportation, and Rural Water District # 8, which laid a water line alongside the old road.
In February 1989, the Sebrees moved for partial summary judgment, asking the 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 court denied the motion, finding issues of material fact remained. While the matter was pending before the court, it granted the Sebrees a restraining order, preventing the Dreashers from harassing the Sebrees and also preventing any of the defendants from altering the spur road in any way. The Sebrees reached a settlement with Rural Water District # 8, which was then dismissed from the lawsuit.
In the summer of 1990, the Sebrees again moved for summary judgment against the county commissioners, the Department of Transportation, the Dreashers, and Ed Southall. Southall did not respond to the motion and the Sebrees were granted summary judgment against him. The Dreashers also moved for summary judgment, asking the court to find they had a common-law right of access to the spur road and the old highway. The court found that the Sebrees held fee title to the property at issue, subject to a road easement by Shawnee County for the old highway. The court also held that the Dreashers had a right of access to the old highway by way of the spur road because the Dreashers' property abuts the spur road, "all of which lies within Shawnee County's easement."
The court denied the Sebrees' motion to alter or amend and the Sebrees' request for trespass damages against Ed Southall on the basis that the journal entry granting summary judgment against Southall did not address plaintiffs' claim of trespass damages. The parties reached an agreement on a permanent injunction limiting any further widening or repair work to be done on the spur road. This appeal follows.
In its summary judgment order, trial court found that, as a matter of law, "[b]ecause the Dreasher property abuts Shawnee County's easement for the public road, which by definition is open to use by anyone, the ... Defendants have the right of access to the road by way of the spur road."
The standard of review of summary judgment decisions is well settled.
Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 306-07, 756 P.2d 416 (1988).
See Hammig v. Ford, 246 Kan. 70, 72, 785 P.2d 977 (1990). The burden of proof falls upon the Dreashers to show they are entitled to judgment as a matter of law.
The trial court determined that the Sebrees were the fee title owners of old Highway 40 and the spur road, but that Shawnee County retained an easement for both. The Sebrees admit that if the Dreashers prove they have a right of access to the road, then the Dreashers are entitled to enter onto the Sebrees' property to reach the old road. The Sebrees, however, contend that summary judgment was improper because the Dreashers failed to show that their property abutted the public road and because a genuine issue of material fact remains regarding whether use of the spur road is reasonably necessary if a second road exists on the Dreashers' property allowing access to the same public road.
The trial court based its decision upon Spurling v. Kansas State Park & Resources Authority, 6 Kan.App.2d 803, 636 P.2d 182 (1981), which addresses the common-law right of access to public roads by abutting landowners. In Spurling, residents of the Woodson Bend Subdivision sued the Kansas State Park & Resources Authority to provide them with additional access roads from the subdivision to the park road in Lake Crawford State Park. The trial court found that the residents' property came within 35 feet to 76 feet of actually touching the park road. The trial court held the park road to be a public road and that the residents, as abutting property owners, were entitled to reasonable access.
We reversed, finding that the residents were not abutting property owners and were not entitled to the...
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