Garn v. Higgins

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NOT DESIGNATED FOR PUBLICATION

No. 118,980


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ARTHUR L. GARN and KAREN J. GARN,
Plaintiffs/Appellees,

v.

MICHAEL W. HIGGINS,
Defendant/Appellant,

and

TRUSTEES OF MISSION CREEK TOWNSHIP OF WABAUNSEE COUNTY,
Defendants/Appellees.


MEMORANDUM OPINION

Appeal from Wabaunsee District Court; JEFFREY R. ELDER, judge. Opinion filed February 15,
2019. Affirmed.

Bob W. Storey, of Bob W. Storey, P.A., of Topeka, for appellant.

Gregory A. Lee, of Sloan, Eisenbarth, Glassman, McEntire & Jarboe, L.L.C., of Topeka, and
John Waugh, of The Waugh Law Office, of Eskridge, for appellees Arthur L. Garn and Karen J. Garn.

Before GARDNER, P.J., ATCHESON and POWELL, JJ.

PER CURIAM: After a hearing on cross-motions for summary judgment, the
Wabaunsee County District Court ruled that Plaintiffs Arthur and Karen Garn had an
easement entitling them to use a private roadway across property owned by Defendant
Michael W. Higgins to get to their home. The roadway functions as an extended
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driveway for the Garns. The district court ordered Higgins to remove a gate he had
constructed across the roadway. Higgins has appealed and principally argues the evidence
presented to the district court did not warrant summary judgment for the Garns.
Alternatively, Higgins contends he was deprived of the opportunity to present all of his
evidence on the need for the gate. We find no error and affirm the district court.

FACTUAL AND PROCEDURAL BACKGROUND

In 1956, the owners of the land Higgins later purchased executed an easement
granting access from a county road in rural Wabaunsee County across their land to an
adjacent tract of land to the east, thereby permitting ingress and egress to the easterly
parcel. The Garn family acquired the 320-acre eastern tract in 1960. Arthur and Karen
Garn now own the land and have lived there since 2006. Higgins purchased the property
subject to the easement in late 2015 from the Kitchens family. He says he learned of the
easement only after buying the land.

The easement affords the Garns use of the private roadway to reach their home
and outbuildings from a nearby county road. According to the district court's journal
entry, the private roadway is between one-half and three-quarters of a mile long. The land
subject to the easement has been used to pasture cattle. For years, the landowners
successfully used a cattle guard to keep livestock from escaping.

Shortly after buying the land, Higgins replaced the cattle guard with a gate across
the roadway. Initially, Higgins locked the gate but later removed the lock. After that, the
Garns filed suit in July 2016 asserting various causes of action and seeking removal of
the gate as one form of relief. Higgins duly answered, and the parties undertook
discovery.

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Higgins filed a motion for summary judgment, and the Garns filed their own
motion for summary judgment about a week later, which functionally became a cross-
motion. At some point, Higgins and the Garns specifically requested the district court to
rule on whether Higgins could maintain the gate consistent with the easement as a distinct
issue apart from any argument the roadway constituted a public right-of-way. The district
court invited them to submit supplemental briefing on that point, and they did.[1]

[1]In their amended petition, the Garns sued Higgins and Mission Creek
Township, through its trustees. They alleged the roadway across Higgins' property legally
should be considered a township road. On that theory, Mission Creek Township would be
responsible for maintenance of the roadway, and Higgins arguably would have no right to
obstruct the roadway with a gate. The district court granted the township's motion for
summary judgment, while reserving ruling on the Garns' claims against Higgins. The
Garns have not cross-appealed the judgment in favor of the township, so the issue of the
roadway as a public right-of-way is not before us.

In their summary judgment papers, the Garns argued that the gate amounted to a
legally impermissible burden on their right of ingress and egress created through the
easement. They pointed out that to pass through the gate, one of them had to get out of
their vehicle, open the gate, get back in, drive through the gate, and get in and out again
to close the gate. In a May 31, 2017 affidavit, Arthur Garns stated he was 65 years old
and had a bulging disc in his lower back, suffered from degenerative arthritis, and had
undergone two knee replacement surgeries. He characterized himself as "disabled"
because of those conditions and declared he found it "increasingly more difficult" to
negotiate the gate going to and from his home. Arthur Garn's physical condition was
undisputed in the summary judgment materials.

In the affidavit, Arthur Garn also represented that private delivery services would
not go through the gate and routinely left parcels for him and his wife at the gate. As a
result, they sometimes did not know about the deliveries for a day or more, exposing the
packages to the elements during that time. That representation was also uncontroverted.

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Higgins submitted a June 19, 2017 affidavit to the district court in which he stated
he operated a quarry on land next to the Garns' property for more than 20 years. Based on
the argument to the district court, we understand Higgins intended to expand the quarry
operation to the land he purchased from the Kitchens. In its journal entry, the district
court acknowledged the quarry but made no finding regarding expansion. In the affidavit,
Higgins asserted without elaboration that "[a] gate is necessary to keep the cattle in the
pasture as well as to inhibit trespassing." He stated stray cattle would pose a danger to
motorists traveling on the adjacent county road.

In November 2017, the district court heard oral argument from the lawyers for the
Garns and Higgins on their summary judgment submissions directed at whether the
unlocked gate unreasonably interfered with the easement. The district court then filed a
journal entry in January 2018 granting summary judgment for the Garns and ordered
Higgins to remove the gate. Higgins has appealed.

LEGAL ANALYSIS

Summary Judgment Standards

The standards for granting summary judgment and reviewing the judgment on
appeal are well known. A party seeking summary judgment has the obligation to show,
based on appropriate evidentiary materials, there are no disputed issues of material fact
and judgment may, therefore, be entered in its favor as a matter of law. Trear v.
Chamberlain, 308 Kan. 932, 935, 425 P.3d 297 (2018); Shamberg, Johnson & Bergman,
Chtd. v. Oliver, 289 Kan. 891, 900, 220 P.3d 333 (2009). In essence, the movant argues
there is nothing for a jury or a trial judge sitting as fact-finder to decide that would make
any difference. The party opposing summary judgment must then point to evidence
calling into question a material factual representation made in support of the motion.
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Trear, 308 Kan. at 935-36; Shamberg, 289 Kan. at 900. If the opposing party does so, the
motion should be denied so a fact-finder may resolve that dispute.

In ruling on a summary judgment request, the district court must view the
evidence most favorably to the party opposing the motion and give that party the benefit
of every reasonable inference that might be drawn from the evidentiary record. Trear,
308 Kan. at 935-36; Shamberg, 289 Kan. at 900. An appellate court applies the same
standards in reviewing the entry of a summary judgment. Trear, 308 Kan. at 936.
Because entry of summary judgment amounts to a question of law—it entails the
application of legal principles to uncontroverted facts—an appellate court owes no
deference to the trial court's decision to grant the motion and review is unlimited. See
Adams v. Board of Sedgwick County Comm'rs, 289 Kan. 577, 584, 214 P.3d 1173 (2009);
Golden v. Den-Mat Corporation, 47 Kan. App. 2d 450, 460, 276 P.3d 773 (2012).

As the summary judgment standards recognize, juries or district court judges
presiding in bench trials ordinarily decide fact questions. But that is not invariably true. A
district court may grant summary judgment if the material facts are undisputed or any
disputes are resolved in favor of the party opposing the motion and that view of the
evidence shows either that no reasonable jury could find for the opposing party or that the
moving party is otherwise entitled to judgment as a matter of law. See Lumry v. State,
305 Kan. 545, 566, 385 P.3d 479 (2016) (summary judgment appropriate when "'no
genuine issue as to any material fact'" and those facts show moving party "'entitled to
judgment as a matter of law'") (quoting K.S.A. 2015 Supp. 60-256[c][2]); Estate of
Belden v. Brown County, 46 Kan. App. 2d 247, 276, 261 P.3d 943 (2011) ("Should the
evidence taken in the best light for a plaintiff nonetheless fail to establish a basis for a
jury to return a verdict for that plaintiff, the court may enter a summary judgment for the
defendant.").

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Where, as here, each party has filed a motion for summary judgment, the district
court has no broader authority to grant one of the motions. Each motion must be
separately and independently reviewed using the standards we have outlined. Wheeler v.
Rolling Door Co., 33 Kan. App. 2d 787, 790-91, 109 P.3d 1255 (2005); Jones v. Noblit,
No. 100,924, 2011 WL 4716337, at *1 (Kan. App. 2011) (unpublished opinion). In short,
the filing of cross-motions does not afford the district court a license to decide a case on
summary judgment.

Legal Principles Bearing on Easements

An easement establishes a party's right to enter a tract of land owned by another
and to use some portion of the land for a specific purpose. See Smith v. Harris, 181 Kan.
237, 246-47, 311 P.2d 325 (1957); Black's Law Dictionary 622 (10th ed. 2014)
(definition of "easement"). An easement, then, diminishes the owner's fee simple right to
unfettered use of the land. Easements may be created by grant, typically embodied in a
written instrument, or by necessity. The easement here was by written grant and became a
burden on the tract Higgins bought, so it passed from owner to owner with the land.
Smith, 181 Kan. at 246-47 (easement considered "interest in land" and "in the nature of a
covenant running with the land"). In the parlance of property law, that made Higgins'
tract the servient estate or tenement. Black's Law Dictionary 667 (10th ed. 2014)
(definition of "estate," meaning 4). As we have explained, the easement allowed the
owner of the Garn tract—the dominant estate or tenement—ingress and egress from the
county road across the servient estate. The easement effectively created a driveway from
the county road to the Garns' property, albeit across someone else's land.

Easements may be characterized as either specific or blanket. As the terms
suggest, a specific easement entails a detailed statement of the right and an identification,
often by legal description, of the particular area of the servient estate subject to the right.
Conversely, a blanket easement simply states the right generally. See Brown v.
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ConocoPhillips Pipeline Co., 47 Kan. App. 2d 26, 33-34, 271 P.3d 1269 (2012). The
easement here is specific: It grants a right of ingress and egress "for the purpose of going
to and coming from" the tract the Garns now own and includes a legal description of a
route across the tract Higgins now owns.

Courts enforce unambiguous terms of a specific easement as they are written or
otherwise established. 47 Kan. App. 2d at 33. But the grant here is silent about gates—it
neither permits nor prohibits them. Nor does the grant address any other limitations on
use of the easement, such as size of vehicles or volume of traffic. Absent an express term
covering a particular aspect of an easement, reasonableness governs in light of the
underlying purpose of the easement. See Aladdin Petroleum Corporation v. Gold Crown
Properties, Inc., 221 Kan. 579, 584, 561 P.2d 818 (1977); Southern Star Central Gas
Pipeline, Inc. v. Cunning, 37 Kan. App. 2d 807, 813-14, 157 P.3d 1120 (2007) (absent
precise terms, as with blanket easement, courts consider materiality of encroachment and
reasonable enjoyment or use in assessing scope of or interference with easement).

We do not understand the parties to be disputing those principles or their
application to the ingress-egress easement.[2]

[2]In his affidavit, Higgins suggested the roadway deviates from the easement as
described in the grant. But the parties have not made an issue of any purported variance
between the route fixed in the grant and the actual roadway used for ingress and egress
(apparently for years if not decades). The issue here is impairment of the right of ingress
and egress and not the precise path used.

The holder of an easement must act reasonably in exercising the right granted. See
Spears v. Kansas City Power & Light Co., 203 Kan. 520, 529, 455 P.2d 496 (1969)
(acknowledging rule but finding it inapplicable to issues litigated); Holmes v. Sprint
United Telephone of Kansas, 29 Kan. App. 2d 1019, 1022, 35 P.3d 928 (2001). And the
owner of the servient estate retains the right to use his or her land in any manner
compatible with a reasonable exercise of the easement. Aladdin Petroleum, 221 Kan. at
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586. By the same token, the owner of the servient estate may not interfere with the right
conferred in an easement. But interference with or impediment of an easement will be
actionable only when it materially disrupts the reasonable exercise or use of the
easement. 221 Kan. at 588. The degree of disruption largely depends upon the particular
circumstances, including the purpose of the easement and the specific nature of the
interference. See Brown, 47 Kan. App. 2d at 36-37 (interference with easement measured
by facts of case).

The Garns and Higgins have joined their legal battle over competing
characterizations of the reasonableness of gating the roadway. Issues ground in
"reasonableness under the circumstances" typically present questions of fact. We presume
that to be true of the keystone point of contention here. Other courts and commentators
look at disputes turning on interference with easements that way. Morgan v. New Sweden
Irr. Dist., 156 Idaho 247, 256, 322 P.3d 980 (2014); Teal v. Lee, 506 S.W.2d 492, 497
(Mo. App. 1974) (whether fence or gate violates right-of-way easement considered "in
general" to be question of fact taking into account array of considerations); D'Abbracci v.
Shaw-Bastian, 201 Or. App. 108, 117, 117 P.3d 1032 (2005); 28A C.J.S. Easements
§ 270 (interference with easement ordinarily question of fact). But, as we have explained,
a district court is not precluded from granting summary judgment simply because the
outcome of a dispute turns on a question of fact. Summary judgment may nonetheless be
appropriate if the material facts are undisputed or if the nonmoving party cannot prevail
even on its most favorable version of the facts. This case fits in that category. Cf. Stroda
v. Joice Holdings, 288 Kan. 718, 720, 207 P.3d 223 (2009) (scope of implied easement
properly considered on summary judgment because material facts undisputed).

Summary Judgment Evidence Considered

The undisputed facts demonstrate that Arthur Garn is physically disabled, and his
disabilities prevent him from readily navigating the roadway with an unlocked gate in
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place. The gate materially impedes his use of the easement. Secondarily, the unlocked
gate prevents the Garns from receiving packages shipped by private delivery services at
their residence, as would be customarily expected. The negative effect on deliveries also
diminishes the easement, since the right of ingress and egress is not confined to the Garns
personally and extends to their social and business invitees. Based on the summary
judgment evidence, both are concerns to the Garns. But the disruption to Arthur Garn as
he travels between his home and the county road is of paramount significance.

We do not, however, measure the impediments to the Garns in a vacuum. The gate
did not obliterate their ability to reach their home, so the easement had not been rendered
wholly ineffective. The owner of a servient estate may impose some burden on an
easement if necessary for a reasonable use of the land in a certain way. Although the gate
measurably impaired the Garns' right of ingress and egress, we must examine the
purposes Higgins advanced for constructing the gate to assess whether the impairment
was unreasonable.

First, Higgins stated the gate inhibited trespassing—a purported benefit we
understand he tied to the quarry operation. In his affidavit and other summary judgment
materials, he did not elaborate on this notion. We failed to see how an unlocked gate
would appreciably deter even a modestly motived trespasser. Higgins offered no evidence
that the quarry had been afflicted with trespassers or thieves. Nor did he explain how his
plan to expand the quarry might require enhanced security that an unlocked gate would
provide.

Second, Higgins stated the gate kept his grazing cattle from ambling onto the
county road, where they would pose a hazard. Owners of livestock have a duty of care to
prevent the escape of their animals. See K.S.A. 47-123 (owner of livestock "run[ning] at
large" liable for damages to person injured as result). But Higgins removed a cattle guard
from the roadway that, based on the summary judgment evidence, had been effective in
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preventing cattle from escaping. Higgins, therefore, couldn't justify the burden the gate
imposed on the Garns' ingress-egress easement as necessary to confine cattle grazing on
the servient estate.

In his affidavit, Higgins stated the Garns had a locked gate on their property and
included a photograph of the lock and chain securing the gate. But the affidavit did not
establish where the gate was located or its purpose. That rather abstract assertion doesn't
diminish the negative impact Higgins' gate had on the Garns' right of ingress and egress
permitted through the easement. The district court noted and correctly discounted
Higgins' representation as irrelevant given its vagueness.

The undisputed summary judgment evidence established that the gate materially
burdened the easement with neither a tangible nor a unique benefit to Higgins and his
land. Higgins offered conclusory and unsupported assertions to resist the Garns' motion.
Those representations were insufficient notwithstanding the relatively slight evidentiary
obligation cast upon a party opposing summary judgment. See RAMA Operating Co. v.
Barker, 47 Kan. App. 2d 1020, Syl. ¶ 6, 286 P.3d 1138 (2012) (affidavits used to support
or oppose summary judgment must "set forth specific facts"); Skrzypczak v. Roman
Catholic Diocese of Tulsa, 611 F.3d 1238, 1244 (10th Cir. 2010) (party opposing
summary judgment may not rely on "conclusory" affidavits but must set forth facts that
would be admissible as evidence at trial); Fischer v. Forestwood Co., Inc., 525 F.3d 972,
978 (10th Cir. 2008) ("'affidavit evidence'" submitted in opposition to summary judgment
may fail to create a material factual dispute if it is "'nonspecific . . . vague, conclusory, or
self-serving'" [quoting Piercy v. Maketa, 480 F.3d 1192, 1197-98 (10th Cir. 2007)]).
Given the evidentiary record presented on summary judgment, the district court properly
granted the Garns' cross-motion and denied Higgins' motion.[3]

[3]By way of counterpoint, we mention this court's decision in Schroeder v.
Urban, 13 Kan. App. 2d 164, 766 P.2d 188 (1988). Schroeder and Urban had serially
litigated property disputes over adjacent tracks of land they owned. Urban had an
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easement across Schroeder's land to reach the 40-acre tract he owned. One of the issues in
that case arose over Schroeder putting fencing with a gate across Urban's easement when
he pastured cattle. The evidence showed that the fencing and gate were intermittently in
place for 10 to 30 days at a time and not at all in some years. Urban testified that he did
not mind opening and closing the gate while using the easement. Without much
discussion, the court affirmed the district court's ruling that, under the circumstances, the
fencing and gate did not unreasonably interfere with Urban's easement. The facts here are
materially different. Higgins' gate was a permanent impediment to the Garns' easement
rather than an interment and distinctly infrequent one. And the Garns had genuine
objections to the gate as a material burden on their right of ingress and egress.

Opportunity to Present Evidence

On appeal, Higgins contends the district court deprived him of the opportunity to
present all of his relevant evidence bearing on the need for a gate and the impact of the
gate on the Garns. But he fails to explain how he was kept from marshalling evidence.
Higgins presumably could have included relevant factual representations in his affidavit
explaining why the gate was important. He owned the quarry and the pastureland and
would have been familiar with how those uses of his land conceivably might have
required a gate on the roadway. Higgins chose not to develop those facts in his affidavit
or to supplement his affidavit with other evidence. As a party, Higgins was anything but a
reluctant or missing witness. So the factual shortcomings of his affidavit cannot be laid
off on the district court.

If Higgins believed he needed to undertake additional formal discovery, such as
depositions or requests for production or subpoenas of business records and other
documents, to successfully oppose the Garns' motion, K.S.A. 2017 Supp. 60-256(f)(2)
provided him with the procedural means for doing so. The statute allows the district court
to give a party responding to a motion for summary judgment additional time specifically
to take depositions or complete other essential discovery. K.S.A. 2017 Supp. 60-
256(f)(2); see Chesbro v. Board of Douglas County Comm'rs, 39 Kan. App. 2d 954, 966,
186 P.3d 829 (2008). Although the decision to allow an extension rests in the district
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court's discretion, Higgins did not even ask. Northern Natural Gas Co. v. ONEOK Field
Services Co., 296 Kan. 906, 935, 296 P.3d 1106 (2013) (denial of 60-256[f] request for
additional discovery reviewed for abuse of discretion). The district court can't be faulted
on that score, either.

Higgins was not unfairly or impermissibly deprived of the opportunity to fully
support his own motion for summary judgment or to oppose the Garns' cross-motion.

Affirmed.

* * *

POWELL, J., concurring: I concur with the result.