Spurling v. Kansas State Park and Resources Authority

• Decision Date: 13 November 1981
• Docket Number: No. 52308,52308
• Citation: 636 P.2d 182,6 Kan.App.2d 803
• Parties: Walter SPURLING, Steve Bever and Johna Bever, Conrad Livingston and Mary Livingston, Jack Harrigan and Madaline Harrigan, Appellees, v. KANSAS STATE PARK AND RESOURCES AUTHORITY, Appellant.
• Court: Kansas Court of Appeals

Page 182

636 P.2d 182

6 Kan.App.2d 803

Walter SPURLING, Steve Bever and Johna Bever, Conrad Livingston and Mary Livingston, Jack Harrigan and Madaline Harrigan, Appellees, v. KANSAS STATE PARK AND RESOURCES AUTHORITY, Appellant.

No. 52308.

Court of Appeals of Kansas.

Nov. 13, 1981.

Syllabus by the Court

1. The common law right of access to a public highway is available to abutting property owners.

2. Abutting is defined as "to touch."

3. In an action to gain access to a park road it is held : Property owners whose land lacks thirty-five feet of touching a park road are not abutting property owners and have no common law right of access.

Robert T. Stephan, Atty. Gen., and Kenneth P. Hackler, Asst. Atty. Gen., were on the brief for appellant.

No appearance by appellees.

Before HERD, Justice Presiding, SWINEHART, J., and LEWIS L. McLAUGHLIN, District Judge Retired, Assigned.

HERD, Justice Presiding:

This is an action for declaratory judgment, injunction and mandamus to compel the Kansas State Park and Resources Authority to provide additional access roads from Woodson Bend Subdivision to the park road in Lake Crawford State Park.

The appellees are residents of Woodson Bend Subdivision in Crawford County. This subdivision shares a common boundary with Lake Crawford State Park. The Kansas Park and Resources Authority has jurisdiction over the park through which runs a park road. Woodson Bend Subdivision contains a sixty foot easement for a road and an eight foot utility easement with a ninety-four foot setback for buildings on each lot. Appellees' property comes within thirty-five feet to seventy-six feet of touching the park road. The Park Authority fenced the park boundary and limited the appellees' ingress to the park road to three accesses. Appellees demand thirteen. The trial court found the park road to be a public road and the appellees as abutting property owners entitled to reasonable access. This appeal followed.

Appellees base their claim to access to the park road on the common law right of access. The Supreme Court outlined this right in Smith v. State Highway Commission, 185 Kan. 445, 451, 346 P.2d 259 (1959):

"It has consistently been held in this jurisdiction the right of access to and from an existing public street or highway is one of the incidents of ownership of land abutting thereon, sometimes called a common law right of access, which may not be taken from the owner by the public without just compensation."

More recently, the Supreme Court stated: "(I)t is recognized in the law of this state that 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." Teachers Insurance & Annuity Ass'n. of America v. City of Wichita, 221 Kan. 325, 330, 559 P.2d 347 (1977). It is apparent this right of access has two components: 1) The persons claiming the right must own land abutting that street or highway; 2) There must be a public street or highway.

Let us examine the first component. Does the property in Woodson Bend Subdivision abut the perimeter road of Lake Crawford State Park? Black's Law Dictionary defines abut as "to reach" or "to touch." (4th ed. 1951 at p. 25) Thus, according to the technical definition, appellees would not be abutting property owners and thereby not entitled to access because their property does not actually border the road.

However, the courts have not been so strict in construing the term. In Riddle v. State Highway Commission, 184 Kan. 603, 610, 339 P.2d 301 (1959), the court stated:

"The right is justified upon the grounds of necessity (citation omitted) and is such as is reasonably necessary for the enjoyment of the land (citation omitted). It is a property right known in law as an 'easement appurtenant' or an 'easement access' to the...