Opinion
No. 110,446.
2014-10-31
CEMETERY DISTRICT NO. 10, Appellant, v. James Brian HUTCHISON and Angela Hutchison, Appellees.
Appeal from Chautauqua District Court; Roger L. Gossard, Judge.John R. Horst, of John R. Horst, P.A., of Caney, for appellant.Karen K. McIlvain, of McIlvain Law Office, LLC, of Madison, for appellees.
Appeal from Chautauqua District Court; Roger L. Gossard, Judge.
John R. Horst, of John R. Horst, P.A., of Caney, for appellant. Karen K. McIlvain, of McIlvain Law Office, LLC, of Madison, for appellees.
Before STANDRIDGE, P.J., PIERRON, J., and JOHNSON, S.J.
MEMORANDUM OPINION
STANDRIDGE, J.
Cemetery District No. 10 (Cemetery District) filed a petition against James Brian Hutchison (Brian) and Angela Hutchison (collectively “the Hutchisons”) claiming a prescriptive easement to use what it referred to as “Oak Grove Lane” for purposes of ingress and egress to the Oak Grove Cemetery. The district court held that a prescriptive easement did not exist as to Oak Grove Lane and denied further access to the cemetery using the lane. The district court then approved the route on the south end of the Hutchisons' property for necessary ingress and egress to the cemetery. On appeal, the Cemetery District argues that the district court erred in finding the public used Oak Grove Lane with permission. In addition, the Cemetery District argues the district court lacked jurisdiction to establish an alternate route to Oak Grove Lane. Finally, the Cemetery District argues the evidence does not support the district court's finding that the Hutchisons offered to devote the south end of their property for public use as an alternate route to the cemetery. For the reasons stated below, we are not persuaded by any of the arguments presented by the Cemetery District; accordingly, we affirm.
Facts
In order to provide context to the claims in this appeal, we necessarily must begin our analysis by discussing the facts and the holding of Stark v. Stanhope, 206 Kan. 428, 480 P.2d 72 (1971). The Cemetery District was a defendant in the Stark lawsuit, which was a quiet title action brought by L.O. and Lena Alice Stark, who asserted ownership by adverse possession of certain real estate bordering the Oak Grove Cemetery. In describing the history and ownership of the land at issue, the Stark court noted that the Board of Directors of School District No. 103, Chautauqua County deeded a tract of land in 1883 for “ ‘school and seminary purposes.’ “ 206 Kan. at 429. The tract was described as follows:
“[C]ommencing at the southeast corner of the northeast quarter of the southeast quarter of Section 8, Township 35, Range 11 East, thence north 396 feet (24 rods), thence west 825 feet (50 rods), thence south 396 feet (24 rods), thence east 825 feet (50 rods), to the place of beginning, and containing seven acres more or less.” 206 Kan. at 429.
The west 278 feet of the tract was referred to in that litigation as Tract 3 and was used as a cemetery. That cemetery was operated by the Cemetery District after its creation in 1944. The remaining land originally deeded to the school district was divided into two tracts. In 1950, the Starks purchased the plot referred to as Tract 1. It was described as:
“Beginning at the point 208 feet North of the Southeast corner of the Northeast quarter of the Southeast quarter of Section 8 Township 35 South Range 11 east of the 6th P.M. Running North 188 Ft thence West 446 ft Thence South 124 thence Southeast[ ] 451 ft to the place of beginning containing two Acres more or less.”
Tract 2 was composed of the remaining land and described as:
“Beginning at the Southeast Corner of the Northeast Quarter of Section 8, Township 35 South, Range 11 east of the 6th P.M., running thence West 547 feet, thence North 396 feet, thence East 101 feet, thence South 124 feet, thence Southeast 451 feet to a point 208 feet North of the point of beginning, thence South 208 feet to the point of beginning.”
Tract 1 and Tract 2 were fenced together, causing the Starks to believe they had purchased both tracts. They made use of Tract 2 by removing trees and clearing brush, planting new trees, and harvesting hay. When they initiated the quiet title action, the Cemetery District filed a counterclaim asserting that it was the rightful owner of all of Tract 2 and that the Starks could not obtain the real property by adverse possession because the public roadway on Tract 2 was an unabandoned public use.
The district court rejected the Starks' claim that they owned Tract 2 through adverse possession and held that Tract 2 belonged to the Cemetery District. However, the Kansas Supreme Court reversed, noting that the Cemetery District had failed to produce any evidence to support a claim to Tract 2 other than use of the roadway leading to the cemetery. 206 Kan. at 431, 437. The court ultimately held that the public's infrequent use of the roadway did not prevent the Starks from having exclusive possession of Tract 2, as required to obtain real property by adverse possession. 206 Kan. at 436–37. In announcing its holding, the Supreme Court remanded the case “with directions to enter judgment in favor of the [Starks] confirming their ownership to Tract 2, subject to the public's easement to use of the roadway for ingress and egress to the cemetery.” (Emphasis added.) Stark, 206 Kan. at 437.
In 1970, before the Supreme Court published the Stark decision on January 23, 1971, the Starks deeded Tracts 1 and 2 to Chetopa E. Revard and Patricia A. Waller. Although the record on appeal contains several subsequent deeds, the record does not provide information on all transfers of ownership since 1970. In this case, the parties continue to refer to the north and south tracts as Tracts 1 and 2, respectively, but the legal descriptions of the two current tracts as they are described today are not identical to the legal descriptions of Tracts 1 and 2 as they were described in Stark. Specifically, the tracts are currently described as perfectly rectangular and Oak Grove Lane appears to cross both tracts. In Stark, however, the Supreme Court stated that Tract 1 did not border the cemetery and that the road was on Tract 2. 206 Kan. at 429.
Brian testified at trial that he has lived on the south tract (Tract 2) since 1998, but it is unclear from the record when he actually obtained ownership of that tract. Brian purchased the north tract (Tract 1) in 2006. A deed dated April 12, 2006, and filed with the Chautauqua County Register of Deeds on April 14, 2006, showed the north tract being transferred to James B. Hutchison, a single person. In its second amended petition, however, the Cemetery District alleged the Hutchisons were the owners of the real property east of Oak Grove Cemetery. In their answer, the Hutchisons admitted that allegation.
In May 2010, Larry King, the Chautauqua County Counselor, sent Brian a letter on behalf of the Chautauqua Board of County Commissioners. The letter advised Brian that members of the public were suggesting that access to Oak Grove Cemetery was not always forthcoming. The commissioners stated they understood the public historically accessed the road to the cemetery, which ran past the Hutchisons' house, but that an alternate route was available. King invited Brian to the next commissioner meeting to discuss the issue.
Brian was not able to attend the meeting because he was out of town but responded by letter. In the letter, Brian expressed concerns about the public's use of Oak Grove Lane to access Oak Grove Cemetery, made suggestions about how to resolve the concerns, and expressed a willingness to work with the county on the issue. With regard to his specific concerns, Brian indicated that he and his wife had small children and the roadway was less than 1 foot from the back porch of his house. Brian noted that travelers often drove too fast, parked on his land, or got stuck trying to turn around on his property. Brian indicated that there was an alternate road on the south side of his land that also provided access to the cemetery. He expressed a willingness to contribute money or labor toward the project in order to move the current access road to the south access road.
At some point after receiving Brian's letter, Chautauqua County began improving the alternate access road on the south side of Brian's property. The Cemetery Board then filed this lawsuit seeking a judgment declaring a public easement across Oak Grove Lane. Relying on the doctrine of res judicata, the Cemetery Board claimed the Kansas Supreme Court already has recognized a public easement to use Oak Grove Lane. Alternatively, the Cemetery Board claimed that the public has established a prescriptive easement to use Oak Grove Lane. In a written memorandum decision filed on March 1, 2013, the district court rejected the Cemetery District's claim. Specifically, the district court found that public use of the road as ingress and egress from the cemetery was not exclusive because the road also had been used as a driveway for the Hutchisons and their guests. The court also found that the public's use of Oak Grove Lane had been with the permission of the Hutchisons and that use of a road with the permission of the owner can never ripen into an easement by adverse possession.
The Cemetery District filed a timely motion to alter or amend the judgment. In support of its motion, the Cemetery District argued the district court failed to acknowledge that the roadway at issue in this case is the same roadway at issue in Stark; thus, the Kansas Supreme Court already had recognized Oak Grove Lane as a public easement by prescription before the Hutchisons ever became owners of the real property east of Oak Grove Cemetery. The Cemetery District also suggested that the district court lacked the authority to establish an alternate roadway prior to proceedings under K.S.A. 68–117. The district court held a hearing on the motion and took the matter under advisement. In a memorandum decision filed on July 23, 2013, the district court denied the motion, concluding its original judgment should not be altered or amended.
Analysis
The Cemetery District presents three issues for decision on appeal: (1) whether Oak Grove Lane became a public roadway by prescription after the Hutchisons became owners of the property in 1998; (2) whether Oak Grove Lane became a public roadway by prescription before the Hutchisons became owners of the property in 1998; and (3) whether the district court had legal authority to create a prescriptive easement, which it did by designating the south part of the Hutchisons' property as an alternative to Oak Grove Lane for purposes of accessing the Oak Grove Cemetery. We address each of these issues in turn.
Post–1998 prescriptive easement
A public roadway may be established by prescription. Carlson v. Burkhart, 271 Kan. 856, 861, 27 P.3d 27 (2001). Kansas courts use K.S.A. 60–503 to analyze whether a prescriptive easement has been established. Brownback v. Doe, 44 Kan.App.2d 938, 942, 241 P.3d 1023 (2010). That statute reads:
“No action shall be maintained against any person for the recovery of real property who has been in open, exclusive and continuous possession of such real property, either under a claim knowingly adverse or under a belief of ownership, for a period of fifteen (15) years. This section shall not apply to any action commenced within one (1) year after the effective date of this act.” K.S.A. 60–503.
It is the Cemetery District's burden to produce the evidence necessary to establish that a prescriptive easement was created under the criteria set forth in K.S.A. 60–503. See Stramel v. Bishop, 28 Kan.App.2d 262, 264–65, 15 P.3d 368 (2000), rev. denied 271 Kan. 1042 (2001). The existence of a prescriptive easement is a question of fact reviewed for substantial competent evidence of a clear and convincing quality. Fiest v. Steere, 175 Kan. 1, 6, 259 P.2d 140 (1953); Stramel, 28 Kan. App, 2d at 264–65; Brady Fluid Svc., Inc. v. Jordan, 25 Kan.App.2d 788, 794, 972 P.2d 787 (1998); Allingham v. Nelson, 6 Kan.App.2d 294, 301, 627 P.2d 1179 (1981).
“In a claim of title by adverse possession, every presumption is in favor of the holder of the legal title and against the claimant. The law will not allow the property of a person to be taken by another upon slight presumptions or probabilities. The facts relied upon to establish adverse possession cannot be presumed, and presumptions will not be indulged in to establish a claim of title.” Chesbro v. Board of Douglas County Comm'rs, 39 Kan.App.2d 954, Syl. ¶ 3, 186 P.3d 829, rev. denied 286 Kan. 1176 (2008).
In Kratina v. Board of Commissioners, 219 Kan. 499, 502, 548 P.2d 1232 (1976), the Kansas Supreme Court discussed the elements required to establish a public prescriptive easement;
“To establish a highway by prescription the land in question must have been used by the public with the actual or implied knowledge of the landowner, adversely under claim or color of right, and not merely by the owner's permission, and continuously and uninterruptedly, for the period required to bar an action for the recovery of possession of land or otherwise prescribed by statute. When these conditions are present a highway exists by prescription; otherwise not.' “
The Cemetery District presented testimony from several witnesses in its effort to establish that the public continuously used Oak Grove Lane for a period of at least 15 years without the Hutchisons' permission. But our Supreme Court has held travel by the public, without more, is not enough to establish that the public's use is adverse. See Kratina, 219 Kan. 499, Syl. ¶ 3. The underlying rationale for this holding is twofold. First, public use of a roadway does not reveal whether the owner is permitting the use or merely acquiescing to it. Second, public use does not reveal whether the governmental entity intends the road to be used by the public based on an established legal right or based on permission granted by the owner. 219 Kan. at 504–05. The district court in this case was not persuaded that a prescriptive easement had been created based on findings that (1) the Hutchisons permitted public use of Oak Grove Lane to access the cemetery; and (2) the county did not treat Oak Grove Lane as a public road. We review the court's factual findings to determine whether they are supported in the record by substantial evidence of a clear and convincing nature.
The Cemetery District called Patricia Revard (a/k/a Patricia Waller) at trial, who testified she and Chetopa Revard purchased Tracts 1 and 2 from the Starks in 1970. The Revards sold the south parcel to Patricia's parents in the late 1970's and lived on the north parcel until 1983. Patricia testified that Oak Grove Lane ran close to the house on the north parcel during the time she lived there and that the public used that road to access Oak Grove Cemetery. On cross-examination, Patricia testified it was her understanding when they purchased the house that the road had always been used to access the cemetery. Patricia stated that the public had her permission to use Oak Grove Lane to reach the cemetery.
Tammie Hillburn was the treasurer of the Board from 2001 to 2008. She was familiar with Oak Grove Cemetery because her great-grandmother was buried there. At her great-grandmother's funeral, she accessed the cemetery by using Oak Grove Lane. Tammie believed Chautauqua County performed maintenance on Oak Grove Lane at some point. Specifically, Tammie testified that she and her husband donated $85.15 worth of gravel purchased from Harshman Construction and Chautauqua County graded the road after the donated gravel had been put down. A copy of the check to Harshman Construction was entered into evidence. Tammie said she had paid for the gravel because the owner of the north parcel thought the road needed maintenance, but the Board did not. To resolve the conflict, she and her husband purchased the gravel. On cross-examination, Tammie admitted that she did not personally see the county grade the road or do any other kind of work to maintain Oak Grove Lane.
Tom Peel was an employee of the Chautauqua County Road and Bridge Department from 1991 to 2005. He testified that he performed maintenance on Oak Grove Lane; specifically, he remembered filling potholes and smoothing the road. Peel did not recall working with gravel purchased by the Hillbums but asserted that, at other times, he hauled rock down to the road to fix holes. Although Peel did not operate a road grader, he said he had observed a county road grader on Oak Grove Lane in the past.
Alan Moore, who lived a mile and a half from the Oak Grove Cemetery, testified that the first funeral he remembered attending at Oak Grove Cemetery was in 1947. He recalled attending several funerals thereafter and always used Oak Grove Lane to reach the cemetery. Moore said he was unaware before the lawsuit was filed that there was a road on the south side of the Hutchisons' property that could be used to access the property.
The Hutchisons called Joel Haden as a witness. Haden was the current Road and Bridge Supervisor with the Chautauqua County Road and Bridge Department. At the time of trial, Haden had been in that position for almost 10 years. Haden testified he could not find any record to substantiate the Cemetery District's claim that the county maintained Oak Grove Lane. Although Haden did not remember maintaining the road in the last 10 years, he noted that he would not know if a road grader had worked on the road because the operators generally made independent decisions regarding which roads to grade. When asked on cross-examination about the rock purchased in 2003 by the Hillburns, Haden said it was possible that a county worker spread the rock and graded the road, but he did not find any records to support this conclusion and did not remember verbally instructing anyone to do so.
Jack Carpenter was a county commissioner at the time of trial. He testified that Brian came to the county commission with concerns about Oak Grove Lane. Specifically, Brian expressed concern because he and his wife had small children, and their house was really close to Oak Grove Lane. Carpenter visited the property and confirmed the house was located very close to Oak Grove Lane. During this visit, Carpenter also discovered that a road to the south of the cemetery had been established 30 or 40 years ago, which provided an alternative to Oak Grove Lane for purposes of accessing the cemetery. Carpenter believed that improving the south access at the county's expense might satisfy Brian's concerns. But Carpenter testified that after the county began improving the south road, Moore told the commission at a meeting that he was not in favor of moving the road. After Moore conveyed this information, Carpenter told the road crew to stop working on the south road. Carpenter confirmed that the county did not enter into any agreement with the Cemetery Board to relocate the access road.
Richard Newby, an officer with the Chautauqua County Sheriff's Department, stated that he had led a funeral procession through the access road located to the south of Oak Grove Cemetery (not Oak Grove Lane) in 1995. But Newby also stated that he had never attended any other funerals at the cemetery or accessed the cemetery from the south road at any other time.
Brian was the last witness to testify at trial. He testified that he moved onto the south parcel in 1998. He purchased the north parcel in 2006. Brian estimated that, on average, 70 to 75 percent of people traveling to the cemetery used Oak Grove Lane. The rest used the road on the south end of the Hutchisons' property. Brian testified that he did not initiate contact with the commission about issues relating to Oak Grove Lane but instead responded to a letter he received from the commission inviting him to a meeting to discuss Oak Grove Lane. Brian told the commission that he had concerns about the traveling public accessing the cemetery via Oak Grove Lane but would permit access through an alternative route located on the south part of the Hutchisons' land. In support of his decision, Brian testified Oak Grove Lane was only 2 feet from his back porch; the drivers using the roadway were often speeding (which created safety issues for his small children); drivers using the roadway had, at times, stolen his personal property; the drivers attending funerals would park on his property because the cemetery parking located at the end of Oak Grove Lane only accommodated approximately 5–10 cars; he got blocked in when cars parked on his property; and there had been approximately eight instances since he purchased the property where he had to help a driver extricate a vehicle that became stuck.
Based on the facts presented at trial by the parties, we find substantial competent evidence of a clear and convincing nature to support the district court's finding that the traveling public used Oak Grove Lane with the Hutchisons' permission. At trial, there was evidence that Brian and his wife permitted the public to use Oak Grove Lane in order to access the cemetery. As the party claiming that a prescriptive easement was created, the Cemetery District had the burden to establish that the public used the roadway without permission. The Cemetery District failed to provide any evidence to meet its burden.
We also find substantial competent evidence of a clear and convincing nature to support the district court's finding that the county did not treat Oak Grove Lane as a public road. In order to successfully establish a public roadway by prescription, the claimant necessarily must show some formal or informal action by public authorities to demonstrate an intention to treat the road as a public one, such as improving or maintaining it. Kratina, 219 Kan. 499, Syl. ¶ 3, 505–06. Requiring such a showing is necessary in order to avoid foisting on an unwilling public the duty to shoulder the costs of maintaining a new road. 219 Kan. at 506. In fact, the Kratina court found that public maintenance is the most significant factor for purposes of deciding whether the governing body treated the road as a public one. 219 Kan. at 501, 504–05.
In Schroeder v. Urban, 13 Kan.App.2d 164, 766 P.2d 188 (1988), rev. denied 244 Kan. 738 (1989), a panel of this court upheld a district court's finding that a public roadway was established by prescriptive easement based on the fact that the township was responsible for maintaining, and did maintain, the roadway. Specifically, there was evidence presented at trial that the township had maintained, graded, and elevated the road in question since 1944, which the court found was sufficient evidence to infer that the road became public by prescription. 13 Kan.App.2d at 167.
On the other end of the spectrum, a panel of our court in Brownback, 44 Kan.App.2d at 943, held that minimal maintenance by a governmental entity was inadequate to demonstrate that a public roadway had been established by prescription. In Brownback, there was evidence that a road over private property had been worked on by Linn County on two isolated occasions in the 1980's, but there was no evidence to demonstrate that the county had done any other maintenance work on the roadway during the approximately 100–year time span that the road had been in existence. The panel determined that ditching and grading of a road twice over a time period spanning approximately 100 years was insufficient to establish that the county considered the road to be public and, in turn, intended to shoulder the costs of maintaining it. 44 Kan.App.2d at 943.
Considering the evidence presented and the applicable law, we find substantial competent evidence of a clear and convincing nature supports the district court's finding that the public's use of the road was permissive rather than adverse and that the county did not consider the road to be public and, in turn, did not intend to shoulder the costs of maintaining the road. See Stramel, 28 Kan.App.2d at 264. Accordingly, we affirm the district court's conclusion that Oak Grove Lane did not become a public roadway by prescription during the time period in which the Hutchisons owned the property.
Pre–1998 prescriptive easement
The Cemetery District claims the following language used by the Supreme Court in announcing its holding in Stark necessarily rendered Oak Grove Lane a public roadway by prescription before the Hutchisons took ownership of the underlying land.
“The district court erred in concluding the appellants failed to establish a title to Tract 2, and that judgment is reversed, and the cause remanded with directions to enter judgment in favor of the appellants confirming their ownership to Tract 2, subject to the public's easement to use of the roadway for ingress and egress to the cemetery.” (Emphasis added.) Stark v. Stanhope, 206 Kan. 428, 437, 480 P.2d 72 (197] ).
The Cemetery District did not present this argument to the district court at trial but instead presented it as part of its posttrial motion to alter or amend the judgment. The district court denied the Cemetery District's request to alter or amend its original decision. For the reasons set forth below, we affirm the court's decision.
The party asserting a prescriptive easement has the burden to establish the necessary elements by clear, convincing, and satisfactory evidence. Fiest, 175 Kan. at 6; Allingham, 6 Kan.App.2d at 301. But in this case, the Cemetery District failed to introduce any evidence to establish that the public used Oak Grove Lane prior to 1998 without the permission of the then-landowners for a continuous period of 15 years and the county considered the road to be public and intended to bear the costs of maintaining the road. Instead of evidence, the Cemetery District relies on isolated language used by the court in Stark when remanding the case to the district court. But the factual findings upon which the Stark court based its holding are wholly inconsistent with the isolated language referenced by the Cemetery District.
“In the instant case, the appellants and the public used Tract 2 in an altogether different manner—there was nothing in common between the two uses. The appellants' use of the land for hay was the ordinary use to that of other land similarly located. The public's use of the roadway was casual and infrequent, but the appellants' use of the property was continuous and exclusive for its primary purpose. No other person used the tract for the same purposes the appellants used it, and no other person put it to the use to which it was best adapted. We are of the opinion the infrequent passing of the public on the roadway amounted to nothing more than mere casual entries on the land made without any intention of asserting a right of entry and possession .... “ (Emphasis added.) Stark, 206 Kan. at 436.
Given the specific findings of fact set forth in italics above, we are not persuaded that the court's dicta in remanding the case has any bearing on the outcome of this case.
Alternative access
The Cemetery Board appeals from the district court's order granting the public an easement to use the roadway along the south edge of the Hutchisons' property for purposes of accessing the Oak Grove Cemetery. First, the Cemetery Board claims that in granting the alternative easement, the court improperly considered an issue that went beyond those raised by the parties. But even a cursory review of the record reveals that the alternative easement was a matter at issue in this litigation. The Cemetery District's second amended petition alleges the alternate access road on the south side of the cemetery used to be a county road. In the Hutchisons' answer, they denied that the alternate route was a county road. Throughout trial, both parties elicited testimony regarding the alternate route without any objection. Because it was raised in the pleadings and the parties introduced it into evidence without objection, the district court properly considered the issue. And even if the issue relating to the alternate access road had not been raised, the declaratory judgment action filed by the Cemetery District sounds in equity, which means that the district court was entitled to “render a decree in accord with its own judgment or discretion as to what justice demands in view of the facts pleaded and evidence adduced ... so as to avoid future litigation as far as possible.” Lewis v. Scroggins, 184 Kan. 684, 690, 339 P.2d 24 (1959).
The Cemetery Board also claims that there is insufficient evidence in the record to support the district court's order granting the public an easement to use the roadway along the south edge of the Hutchisons' property. The district court is given wide discretion in deciding on the appropriate equitable remedy, and the court's decision is subject to reversal only when no reasonable person would agree with it. See Cousatte v. Lucas, 35 Kan.App.2d 858, 867–68, 136 P.3d 484 (2006).
In its memorandum decision issued after the trial, the district court stated:
“Without egress and ingress and a prescriptive easement over the roadway along the south edge of the [Hutchisons'] property the public would not have access to Oak Grove Cemetery and that without said egress and ingress the cemetery would be land locked. To land lock a public cemetery would be against public policy in the State of Kansas and would not be appropriate. The Court therefore grants the public and Cemetery District No. 10 access to Oak Grove Cemetery along a roadway along the south edge of the [Hutchisons'] property and gives the public access by easement of ingress and egress along the roadway along the south edge of the [Hutchisons'] property into Oak Grove Cemetery. Said roadway runs westerly along Bronco Road to the cemetery.”
The district court also found that, by Brian's testimony, the Hutchisons consented to the easement along the south edge of their property. In its decision denying the Cemetery District's motion to alter or amend the judgment, the district court noted:
“Defendant James Hutchison in his sworn testimony stated that the public was authorized to use the road along the south edge of his property to ingress and egress Oak Grove Cemetery. The Court believes that for judicial economy it is not necessary for the Cemetery District No. 10 to file an action under K.S.A. 68–117 for a road into the cemetery and that prescriptive easement over the roadway along the south edge of the [Hutchisons'] property would give the public access to Oak Grove Cemetery and it would seem that the County is willing to maintain said road to provide public access to the cemetery.”
Based on the factual record, and notwithstanding a finding that the Hutchisons consented to the easement along the south edge of their property, it appears the court deemed the alternative access on the south edge of the Hutchisons' property to be a public roadway based on the common-law doctrine of easement by necessity, which has long been used to allow a landlocked landowner to access a public roadway over another's private land when no other relief is available. Horner v. Heersche, 202 Kan. 250, 254, 447 P.2d 811 (1968).
“ ‘A way of necessity is an easement founded on an implied grant or implied reservation. It arises where there is a conveyance of a part of a tract of land of such nature and extent that either the part conveyed or the part retained is shut off from access to a road to the outer world by the land from which it is severed or by this land and the land of strangers. In such a situation there is an implied grant of a way across the grantor's remaining land to the part conveyed, or conversely, an implied reservation of a way to the grantor's remaining land across the portion of the land conveyed.’ “ 202 Kan. at 254 (quoting 25 Am.Jur.2d, Easements and Licenses § 34, pp. 447–48).
Once the court determined that the elements of a prescriptive easement to access Oak Grove Cemetery through Oak Grove Lane had not been met, the cemetery became landlocked and the court determined the appropriate equitable remedy was to apply the common-law doctrine of easement by necessity to create a roadway on the south edge of the Hutchisons' property for purposes of providing the public access to the cemetery. We find the court did not abuse its discretion in crafting this equitable remedy. Neither did the court abuse its discretion in applying the common-law doctrine of easement by necessity without first requiring the Cemetery District to file its own suit under K.S.A. 68–117 to condemn a private right-of-way over the Hutchisons' land. See Horner, 202 Kan. at 255–56 (statutory way-of-necessity provisions do not abrogate the common law). Had the court required the Cemetery District to file such a lawsuit in order to acquire the right to use the south road, the Cemetery District would have been statutorily required to pay the expenses of the proceeding and all future costs of maintaining the road. K.S.A. 68–117.
Affirmed.