Opinion
111,564.
02-06-2015
Anita Dru PARLETT and Carnahan Farms, LLC, Appellees, v. Andrea BRADFORD, Appellant.
Timothy J. Grillot, of Parsons, for appellant. Richard G. Tucker, of Tucker and Markham, Attorneys at Law, LLC, of Parsons, for appellee.
Timothy J. Grillot, of Parsons, for appellant.
Richard G. Tucker, of Tucker and Markham, Attorneys at Law, LLC, of Parsons, for appellee.
Before MALONE, C.J., BRUNS, J., and RICHARD B. WALKER, District Judge, assigned.
MEMORANDUM OPINION
PER CURIAM.
Andrea Bradford appeals a district court order requiring her to remove obstructions to the natural flow of water from her land in rural Labette County. She raises four issues. First, Bradford contends that K.S.A. 24–105 did not prevent her from diverting water from her property because she does not use her land for agricultural purposes. Second, she appeals the district court's assessment of court costs under K.S.A.2013 Supp. 60–2002. Third, Bradford contends that the district court erred in failing to consider her statute of limitations defense. Fourth, she contends that the district court erred in refusing to admit elevations taken in a survey performed by a deceased engineer. For the reasons set forth in this opinion, we affirm.
Facts
In 1988, Bradford and Roy Karstetter entered into an installment sale contract to purchase 38 acres of land in Labette County. At the time of sale, the land was pasture ground. After Bradford and Karstetter separated, she continued to make payments on the land and eventually received title to the property in 1993. In the spring of that year, Bradford moved into a mobile home she had placed on the southeast corner of the property. In addition, she constructed a shop and a septic system lateral field near her mobile home.
Bradford's land is located to the north of a parcel of land owned by Anita Dru Parlett and farmed by Carnahan Farms, LLC. A hedgerow of trees and a fence separate the two tracts of land. Moreover, a county road runs north and south along the eastern edge of the tracts. East of the county road lies a tract of land the parties refer to as the Coyish farm. A pond is located on Bradford's land to the west of her mobile home and shop. In addition, the County maintains a box culvert that runs underneath the road between the Bradford and Coyish properties. Running along the west side of the road on both the Bradford and Parlett properties is a shallow ditch.
In 1994, Bradford constructed a berm or ditch to the southeast of her mobile home and shop, which diverted water to the southwest. The berm or ditch forced water onto the northeast corner of Parlett's land, which flowed west along the north side of the Parlett Tract before eventually returning to Bradford's land immediately south of the pond. According to Parlett, the water diverted onto her land eroded the farm soil.
In 2010, Carnahan Farms—who was farming the Parlett land—asked the Labette County Public Works Department to clean out the ditch running along the road on the east side of the Parlett property. In response, the public works department graded out the ditch along both Parlett and Bradford's land up to the box culvert. The public works department completed the work on December 10, 2010, and Bradford contacted the public works director on the same day to complain about the work. Evidently, Bradford threatened to refill the ditch, but the public works director explained to her that the County had the authority to clean out the ditch and to maintain the box culvert.
Shortly thereafter, Bradford constructed two berms covered with geotextile material on her land. The first runs parallel with the county road and prevents water from flowing west through the southeast corner of the Bradford's land. The second geotextile berm runs parallel with the hedgerow separating the Bradford and Parlett properties. It prevents water on Parlett's land from flowing onto the Bradford's land until it reaches an outlet located directly south of the pond. In sum, the berms cause surface water on Bradford's land to flow to the northeast corner of Parlett's land before it turns west and follows the hedgerow—eroding soil—and reentering Bradford's property about 590 feet west of the road.
On June 27, 2011, Parlett and Carnahan Farms filed a petition for injunction in Labette County District Court alleging that Bradford's actions caused the redirection of surface water onto Parlett's land with materially greater force and volume than in the past. They also alleged that the diversion of surface water caused erosion of farming soil on Parlett's property. Bradford answered and asserted the statute of limitations as an affirmative defense. Bradford also filed a counterclaim alleging a breach of contract, trespass, and nuisance against both Parlett and Carnahan Farms; in addition, she sought damages and a permanent injunction.
After completing discovery, the district court conducted a pretrial conference, and it entered a pretrial order on September 3, 2013. The pretrial order set forth the claims and defenses of each party. The statute of limitations, although asserted in her answer, was not listed as a defense in the pretrial order.
The district court held a 2–day bench trial on September 4 and 5, 2013. During the trial, Parlett and Carnahan Farms called five witnesses and Bradford called four witnesses. The primary factual dispute related to what the natural flow of surface water was when Bradford purchased her land in 1988. At one point during the trial, Bradford attempted to introduce elevations set forth in a survey performed by Verlyn White. Unfortunately, White had passed away before his deposition, and the district court excluded the introduction of the evidence based on a lack of foundation. The district court also stated that the evidence constituted hearsay.
In a memorandum decision and order entered on September 20, 2013, the district court found that Bradford's grass and geotextile berms caused surface water to go onto Parlett's land. After it determined that K.S.A. 24–105 applied to the Bradford land, the district court ordered both parties to remove all obstructions and return their property to the grades that existed in 1988. The district court also denied each party's claim for damages, finding them to be speculative. Nevertheless, the district court ordered Bradford to pay the court costs—including court reporter charges for a deposition.
Bradford filed a motion to reconsider on October 11, 2013. She also filed what she entitled a petition for quiet title on February 5, 2014, attempting to assert a claim for adverse possession. The district court held a hearing on February 25, 2014, at which it summarily dismissed the quiet title claim. At the hearing, Bradford's attorney represented to the district court that a separate adverse possession action had already been filed. Also at the hearing, the district court clarified that Bradford did not have to pay attorney fees—only court costs. Bradford's attorney attempted to reassert the statute of limitations as a defense. At the conclusion of the hearing, however, the district court denied Bradford's motion, and she timely appealed to this court.
Analysis
Application of K.S.A. 24–105
Under common law, surface water was regarded as an “outlaw, against which any landowner affected may fight.” MO. Pac. Rly Co. v. Keys, 55 Kan. 205, 217, 40 P. 275 (1895). Thus, a landowner was free to cast surface water onto adjoining land without fear of liability. See DeWerff v. Schartz, 12 Kan.App.2d 553, 556, 751 P.2d 1047 (1988). The Kansas Legislature altered the common law in 1911 to prevent property owners whose “lands [are] used for agricultural purposes ... lying wholly outside the limits of any incorporated city” from damming water or taking other action to increase the force of surface water so that adjacent lands are damaged. K.S.A. 24–105 ; see Coykendall, Too Much of a Good thing: Kansas Law on Unwanted Water, 66 J.K.B.A. 24, 25–27 (Sept.1997). Although the Kansas Legislature repealed K.S.A. 24–105 in 2013, this does not affect the present case because Parlett's right pursuant to the statute accrued prior to the repeal. See K.S.A.2013 Supp. 77–201First; Sunflower Racing, Inc. v. Board of Wyandotte County Comm'rs, 256 Kan. 426, 439, 885 P.2d 1233 (1994).
Here, the district court expressly found that “[t]he land in question in this litigation is agricultural and falls within the mandate of K.S.A. 24–105.” From a review of the record, it appears that Bradford did not challenge this finding and conclusion in her motion to reconsider, but she instead challenged it for the first time on appeal. Generally, issues not raised before the trial court cannot be raised on appeal. Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 403, 266 P.3d 516 (2011). Furthermore, Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 40) provides that an appellant must explain why an issue that was not raised below should be considered for the first time on appeal. Bradford, however, fails to offer any explanation why this issue is properly before this court on appeal.
Furthermore, a party must object to inadequate findings of fact or conclusions of law to preserve an issue for appeal. Such objections necessarily give the district an opportunity to correct any alleged inadequacies. See Fischer v. State, 296 Kan. 808, 825, 295 P.3d 560 (2013). Without such an objection, we presume the district court found all of the facts needed to support its judgment. See Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009) ; Dragon v. Vanguard Industries, 282 Kan. 349, 356, 144 P.3d 1279 (2006). Thus, we conclude that K.S.A. 24–105 is applicable to this case.
Court Costs
Bradford next contends that the district court erred in ordering her to pay court costs. The assessment of costs in a civil action is left to the sound discretion of the district court. Accordingly, we review the district court's decision to impose court costs for an abuse of discretion. See Wendt v. University of Kansas Med. Center, 274 Kan. 966, 982, 59 P.3d 325 (2002). Judicial action constitutes an abuse of discretion if it is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106, cert. denied ––– U.S. ––––, 134 S.Ct. 162, 187 L.Ed.2d 40 (2013).
K.S.A.2013 Supp. 60–2002(a) grants the district court the authority to award costs to a party in whose favor judgment is rendered. In addition, K.S.A.2013 Supp. 60–2003 sets forth the types of items that may be included in the taxation of costs, including filing fees, service of process fees, and witness fees. Specifically, K.S.A.2013 Supp. 60–2003(4) and (5) allow a district court to impose certain expenses relating to the taking of depositions used as evidence. Here, the district court's order regarding costs was based on its finding that Bradford intentionally diverted surface water onto Parlett's land in retaliation to the public works department's grading of her ditch. Because there is substantial evidence in the record to support this finding, we do not find that the district court abused its discretion in requiring Bradford to pay court costs-including the expense of a deposition used at trial.
Statute of Limitations
Bradford also contends that the claims asserted by Parlett and Carnahan Farms are barred by the statute of limitations. Although the statute of limitations was included in a list of affirmative defenses in Bradford's answer, the defense was not listed in her pretrial questionnaire. Moreover, the statute of limitations was not listed as a defense in the pretrial order.
In Kansas, a pretrial order controls the course of action unless the district court modifies it to prevent a manifest injustice. K.S .A.2013 Supp. 60–216(d) and (e) ; Sullwold v. Barcus, 17 Kan.App.2d 410, 417, 838 P.2d 908, rev. denied 251 Kan. 942 (1992). Pretrial conferences eliminate the element of surprise at trial and “simplify the issues and procedure by full disclosure to all parties of the anticipated evidence....” McCain Foods USA, Inc. v. Central Processors, Inc., 275 Kan. 1, 18, 61 P.3d 68 (2002). As such, a district court should not entertain an issue or claim for relief that is not contained in the pretrial order. Herbstreith v. de Bakker, 249 Kan. 67, 75, 815 P.2d 102 (1991) ; Nelson v. Nelson, 38 Kan.App.2d 64, 75–76, 162 P.3d 43 (2007), aff'd 288 Kan. 570, 205 P.3d 715 (2009) ; Riverside Drainage Dist. of Sedgwick County v. Hunt, 33 Kan.App.2d 225, 228, 99 P.3d 1135 (2004). Accordingly, we conclude that the district court did not abuse its discretion by disregarding the statute of limitations.
Exclusion of Survey Elevations from Evidence
Finally, Bradford contends that the district court erred in refusing to admit into evidence elevations from a survey conducted by a person who had evidently passed away before he could be deposed. In support of this contention, Bradford cites K.S.A.2013 Supp. 60–460(d), which permits a district court to admit certain out-of-court statements into evidence. However, Bradford offers no argument to support her position and has effectively abandoned the issue on appeal. See Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 645, 294 P.3d 287 (2013) (Points raised incidentally in a brief and not argued therein are deemed abandoned.).
Even if Bradford had not abandoned this issue, a review of the record reveals that the district excluded the evidence for a lack of foundation and simply noted that the evidence was hearsay. Again, Bradford fails to offer a adequate argument to establish that the district court erred in finding insufficient foundation to admit the survey elevations. Likewise, we give district courts considerable discretion in evidentiary rulings regarding foundation evidence. See City of Overland Park v. Cunningham, 253 Kan. 765, 772, 861 P.2d 1316 (1993) ; State v. Rivera, 42 Kan.App.2d 914, 922, 218 P.3d 457 (2009), rev. denied 290 Kan. 1102 (2010). Based on the record before us in the present case, we do not find that the district court abused its discretion.
Affirmed.