Smith v. Harris

• Decision Date: 11 May 1957
• Docket Number: No. 40440,40440
• Citation: 181 Kan. 237,311 P.2d 325
• Parties: Ray and Marie SMITH, Appellants and Cross-Appellees, v. Claud B. and Lottie E. HARRIS, Appellees and Cross-Appellants.
• Court: Kansas Supreme Court

Page 325

311 P.2d 325

181 Kan. 237

Ray and Marie SMITH, Appellants and Cross-Appellees, v. Claud B. and Lottie E. HARRIS, Appellees and Cross-Appellants.

No. 40440.

Supreme Court of Kansas.

May 11, 1957.

Rehearing Denied June 12, 1957.

Syllabus by the Court.

1. Where an express easement appurtenant to land is created subsequent to the execution of the mortgage on the dominant estate, it is held that the easement passes as an appurtenance to the land under the mortgage, although not specifically mentioned in the mortgage foreclosure proceedings, and inures to the benefit of the purchaser at the foreclosure sale and his grantees.

2. In an action to quiet title, set up in answer to a petition seeking injunctive relief, wherein it is sought to remove an alleged cloud arising from a written recorded easement affecting adjoining property as the dominant estate and the property for which the quieting of title is sought as the servient estate, it is held that the owners of the servient estate must rely on the strength of their own title and not on the alleged weakness of their adversary's title.

3. An easement and an easement appurtenant are defined in accordance with the Restatement of Law, Property, as more particularly set forth in the opinion.

4. Rules relating to the creation of implied easements, more particularly as they relate to easements of necessity or apparent easements, are given as more particularly set out in the opinion.

5. An easement may be terminated by adverse possession where there is strong action on the part of the owners of the servient estate such as would entitle the owners of the dominant estate to maintain an action for obstructing their enjoyment of the easement, if such adverse possession continues for the statutory period of fifteen years.

6. In a judicial sale of land made in pursuance of a decree of foreclosure wherein all of the parties to the action were barred from claiming any rights or equities in the property, the sheriff's deed to the purchaser conveys all the title and interest of all parties to the action.

Herbert L. Lodge, Olathe, argued the cause; Howard E. Payne, Olathe, Seth S. Lacy and J. M. Loomis, Kansas City, Mo., were with him on the briefs for appellants.

John Anderson, Jr., Olathe, argued the cause; James B. Pearson and John C. Gage, Mission, were with him on the briefs for appellees.

SCHROEDER, Justice.

This is the second appearance of this action in this court. See Smith v. Harris, 178 Kan. 183, 284 P.2d 611.

This action arose over a driveway easement dispute in which the plaintiffs below, owners of the dominant estate, sought to enjoin the defendants, owners of the servient estate, from interfering with their use of the easement. The trial court denied a permanent injunction, quieted title to the defendants' property and awarded damages for the issuance of a temporary injunction. The plaintiffs appeal from the judgment against them and from all other adverse rulings. The defendants appeal from the finding and all adverse rulings of the trial court that the easement was not terminated by adverse possession.

The issues presented at the previous appearance of this action before the court were based upon the pleadings. Reference is made to that opinion for a factual statement of the pleadings and it will be unnecessary to reiterate them here, except to state that the petition prayed fro a temporary injunction until the merits of the case could be heard in full, or 'the defendants can show cause, if any they have, why this temporary injunction should not be made permanent.'

The appellants and cross-appellees, Ray and Marie Smith, will be referred to throughout this opinion as plaintiffs, and the appellees and cross-appellants, Claud B. and Lottie E. Harris, will be referred to as the defendants, as they appeared in the court below. It should be noted that Lottie E. Harris, formerly Lottie E. Beck, purchased the property owned by the defendants in 1931 and married her present husband, Mr. Harris, in 1944.

For purposes of clarity the two properties involved in this action are situated adjacent to each other in Johnson County, Kansas, fronting 49th Street Terrace which is on the north. The plaintiffs' property is situated immediately to the west of the property owned by the defendants and is designated as 'Tract A'. The defendants' property is designated as 'Tract B'. The driveway over which the dispute arose is approximately 8 feet wide and 103 feet long extending from 49th Street Terrace to the south between the two residences constructed, one on Tract A and one on Tract B, and at the rear of said houses branched into a 'Y' which led to the basement garage on the southeast corner of the house on Tract A, and to the basement garage on the southwest corner of the house on Tract B. This driveway was made of concrete and was constructed by one E. A. Brinton, who was the common owner of these properties in the year 1927. This driveway was located entirely upon Tract B.

On June 7, 1927, Brinton executed a mortgage to the Prudential Insurance Company of America covering Tract A. On the 29th day of August, 1927, Brinton conveyed Tract A by warranty deed to Hughes, who on September 13, 1928, conveyed said tract by warranty deed to Ulrey.

On September 17, 1928, Brinton, still the owner of Tract B, which is now the defendants' property, entered into a written easement designated as 'Driveway Agreement' with Ulrey and the same was recorded on the 19th day of September, 1928, in the office of the Register of Deeds of Johnson County, Kansas. Insofar as is material herein this written driveway agreement after reciting a valid consideration and describing the properties reads:

'The right of way or easement thus created and granted is so created and granted for use by the parties of the second part, their heirs and assigns, as a joint driveway for pleasure vehicles only. It is expressly understood and agreed that neither parties to this agreement shall so use said driveway so as to prevent the free and uninterrupted use of said driveway by the other parties for the purpose for which it is intended. Unless otherwise agreed upon, the driveway shall be of solid concrete construction and the cost of maintaining said driveway in a reasonably good state of repair, shall be borne equally by the parties hereto, except however, in case where damage is done to said driveway by the negligence of either party hereto, or any person or persons in their behalf or under their control, then said damage shall be repaired and the expense of the repairs shall be borne by the parties causing the same.

'Either party hereto shall have and is hereby given the right to do such maintenance and/or repair work to said driveway as may be necessary to maintain the same in reasonably good condition and the other party shall be responsible and liable for one-half of the cost thereof.

'The right of way or easement herein granted shall be deemed to be a covenant running with the title to the land now owned by the respective parties hereto and shall be binding upon the parties hereto and upon their heirs and assigns; provided however, that this easement may be cancelled by mutual agreement of the parties hereto, or their heirs and assigns.'

Among the recitals in the description of the property in the written driveway agreement is the following:

'A right-of-way or easement is also hereby granted over and along so much of Lot Seven (7) in Block Four (4) of Westwood Hills, [Tract B] now owned by the parties of the first part, as may be necessary to permit the parties of the second part to pass from the easement herein created and above described to the entrance of the garage now constructed on that part of Lot Seven (7) in Block Four (4) owned by them. [Tract A]' (Emphasis added.)

On the 31st day of January, 1931, Brinton conveyed Tract B by warranty deed to the defendants herein. This deed was duly recorded and specifically recited among other things that the conveyance was:

'Subject to, but conveying all interest in the easement for driveway recorded in Misc. Records 16, page 158, in the office of the Register of Deeds, Johnson County, Kansas. Subject to all other restrictions, reservations and easements now of record.' (Emphasis added.)

On the 15th day of January, 1932, the Prudential Insurance Company brought suit to foreclose its mortgage on Tract A (now plaintiffs' property) against Ulrey and the other parties who were predecessors in title and/or affected by the mortgage on Tract A, but the defendants were not mentioned as parties defendant therein.

Neither the foreclosure petition nor any of the proceedings therein made reference to the written easement of record designated as a driveway agreement.

Pursuant to the foreclosure action judgment was entered, wherein all of the parties to the action were barred from claiming any right, title, interest, estate or equity in and to the property foreclosed, or any part thereof, and Tract A was sold at a sheriff's sale, whereupon in due course the sheriff's deed was executed and recorded on the 1st day of June, 1934, conveying Tract A to the purchaser, the Prudential Insurance Company of America, mortgagee. The sheriff's deed specifically described Tract A and among other things recited:

'Together with all and singular, the tenements, hereditaments and appurtenances thereunto belonging, or in any wise appertaining.' (Emphasis added.)

Tract A was subsequently conveyed by the Prudential Insurance Company on December 18, 1939, to the Jacksons by a deed which recited in the habendum clause the following:

'To Have and to Hold, the premises aforesaid, with all and singular the rights, privileges, appurtenances, and immunities thereunto belonging or in any wise appertaining * * *' (Emphasis added.)

Thereafter, on the 13th day of May, 1944, the Jacksons conveyed Tract A to the Andersens by warranty deed which recited among other things the...