*1 46,317 No. Betty Grisham, and v. Cities Appellants, A.
Richard Light Company and The Kansas Power and Service Gas Com- pany, Appellees.
(502 672) P. 2d November 1972. Riling, Riling, Riling Burkhead, Eugene Burkhead and C. and Dean
Lawrence, appellants. argued the for the cause and were on brief Terry Bullock, Cosgrove, Oman, Topeka, argued L. and the cause Webb Light Company. appellee on brief for and was The Kansas Power Stough, Lawrence, argued cause, W. Wertz Charles D. Jack Okla., George Peabody, City, E. on the both of Oklahoma were with him brief Company. appellee for Gas Cities Service court was delivered opinion The was one landowners proceeding C.: Harman, Initially quiet land from their title companies two eject utility into action convert the Subsequently plaintiffs sought thereto. mainte- condemnation reason damages inverse In trial to court facilities on their property. nance of utility prescriptive that the defendant utilities acquired held was have from the judgment Plaintiffs appealed easements. that ruling. them entered court form of the trial evidence submitted to affidavits, exhibits, interrogatories stipu- answers
depositions, lations, thereby may the facts developed and with single exception undisputed. said lying of a east consists half-section estate limits south Law- of U. S. city Highway immediately tract, H. owner of the W. Arm- rence, In 1915 then Kansas. as here material life estate his Insofar executed will. strong, testator, subject grandson devised Leland O. Armstrong, estate and income from the real control possession, wife, Anna of her for the term to the testator’s M. Armstrong, *2 Leland, the life natural life. termination of estate the will Upon to said in grandson devised the remainder to children bom any lawful survive him. Leland’s life estate was subject wedlock who to certain restrictions: way Armstrong, any time, any . O. “If . . Leland shall at or in make, any deed, mortgage, lease, equipment any or instru- execute deliver or convey, sell, writing purporting grant, mortgage attempting ment in or to or estate, except alienate otherwise said real lease rent the same for a or to time, years any of not more or if suffer than three at he should or allow taxes or on said estate to be in arrears assessment levied real years, more than estate or if said estate in said shall be sold two life
satisfy judgments any against him, then and in an court rendered such cease, event . . he . estate . shall and . . determine life for- thereupon persons person pass and said real estate shall or such feited Armstrong, my grandson, he would entitled Leland O. same said if operate had died. But . to defeat . . said forfeiture shall not wedlock, grandson, interest of in lawful child bom to said . . . (Emphasis after supplied.) such forfeiture.” W. H. died in 1916. Final settlement of his estate March, the will 1919, was in the proceedings made.in probate court of Douglas widow, Kansas. county, Anna M. His Armstrong, died in 1919. April,
Leland O. 25, Armstrong was bom November 1904. is still He and was a living party defendant trial of this action. The are plaintiff-appellants the two children bom to Leland and his wife, Eleanor. A. Richard Armstrong was 5, 1926, bom December and age 1947; became legal December Betty Grisham was J. bom December and became of legal age December 1952.
The defendant-appellees, Cities Service Gas and Company Power Light Kansas and are Company, each corporations. Cities is in the business of purchasing, transporting in integrated pipe- and selling Texas, line natural system gas Oklahoma, Kansas, and Missouri KP&L Nebraska. owns and operates transmission lines for and transportation sale electricity Kansas. Both have the of eminent for companies power domain purpose land for construction of acquiring right-of-way such lines and facilities. testator, wife, W. Anna,
In 1905 H. and Armstrong, his granted Gas, right-of-way easement the Kansas Natural Oil Line Pipe 300 half subject Improvement Company through south year. and a was installed pipeline twelve-inch in 1927 and pipeline
The easement was assigned Cities it and reclaimed removed from the late reclaim, were early Upon damáges paid by 1937. Cities Armstrong. the time the During Leland O. line grandson, a domestic meter were through property, tap located at gas dwelling for the use of house located principal provided and assignment The easement filed duly property. record. Le- Commencing extending through August, wife, Eleanor, Cities two granted pipeline right-of- and his land through and a meter lease north regulator way easements they granted half of an easement to subject property. Power into Company (later merged KP&L) Kansas Electric an electrical line operation the construction transmission *3 and grants perpetual These in no property. way over first time that either or KP&L was Cities made aware limited. The a were from fife tenant a letter De- by that the was dated grants from of appellants’ attorneys, two weeks prior cember of this action. to the filing of a pipeline right-of-way
The first easement to Cities was grant for Leland of paid grant in 1929. was A right-of-way. was installed gas pipeline through the property sixteen-inch in that such contract Leland was also for year. paid crop damages of installation The pipeline. pipeline with been connection has used for transmission of natural gas to the continuously present by contract was mailed a tenant This easement on time. the prop- and his wife who were then living erty Leland California. executed instrument Armstrongs any without contact with This representative. or a Cities easement filed Cities of record in 1929. wife, Eleanor, and his executed a
In 1939 Leland second right- to Cities for the installation easement of-way pipeline through year and in that a six-inch property pipeline installed point existing from a on the sixteen-inch extending pipeline through in a direction as northerly part project for said trans- for delivery gas use Kansas mission and University. This been used since its continuously has installation pipeline paid right-of-way grant time. Leland was for this and present from installation of the Prior resulting pipeline. damages acquir- owners, easement, of names of'the obtained a list ing the Cities Emick, abstractor a licensed bonded affected C. realty John Lawrence, at as owner of the That list showed Leland Kansas. in 1939. filed record subject The easement was property. requesting was written to Cities August, letter running of the pipelines domestic from one tap gas service L. O. signature letter bore the name through the property. Eleanor, wife, his his consent Armstrong, and was written regarding and at his was had request. correspondence Additional property. for domestic use furnishing gas service indicate limitation Such letters from L. O. did not estate, contrary, but to the used the words ownership a life farm”. In were installed “my regulator 1942 a domestic meter through sixteen-inch pipeline extending domestic and utilized on it continu- gas service has been extended ously since that time.
In 1943 the Kansas Electric Power Company agreed to supply electric energy the Sunflower Ordnance Works. In connection with the construction of the transmission lines for this project it was necessary to cross the Armstrong land. Because size urgency of the and the project shortage personnel, con- KEPC tracted with S. A. Sulentic for the surveying of the line and the acquisition of necessary easements for rights-of-way. Sulentic Kansas, was a consulting engineer Topeka, was not on the staff of KEPC. Sulentic and his employees laid out the Sunflower Ordnance line the easements purchased for rights-of-way therewith, used in conection such except as were acquired through the easements Among condemnation. obtained by Sulentic for the a written grant evidenced right-of-way line.was executed Leland O. Armstrong and his wife to the KEPC in February, *4 Leland covering property question. was paid the full for price the easement which was filed of record in February, 1944. In connection with the acquisition such easements Sulentic Banks, obtained from Frank E. a licensed bonded abstractor doing a list Douglas county, business of owners of the ttacts of land county in that over which the transmission line was proposed and was constructed. A subsequently copy this list of Owners Sulentic, from whom easements were secured property, by KEPC, which list included of L. furnished thé' names O. and ' - n ' Armstrong. Eleánor . transmission electric of construction of the completion Upon signed by a release line, for KEPC delivered contractor prime in installation damages and covering crop L. O. of the line. Uni- to Kansas for sale Cities gas the contract
In 1946 Lawrence, gas over to distributor was turned versity six-inch was established on the Kansas, town border station and a the subject located upon north of at a point pipeline delivering for the purpose was established This station property. Lawrence, a meter August, Kansas. distribution gas his, Eleanor, wife, Leland and was executed lease and regulator 1946. This lease September, for record in was filed lease to renew the with the Cities years of ten a term was for of ten annual thereafter dollars upon payment year-to-year lease rent. house located regulator regulator Cities installed a
In 1946 which facilities question, above ground since been utilized maintained Cities continuously have lease, Cities to the has paid time. Pursuant terms year commencing August, each $10.00 the sum of Leland of this date of commencement action. to the extending December, 1946, through months of KEPC August During the Sunflower Ordnance line. All ease- removed dismantled used in connection the line were for rights-of-way ments The contract for dismantling for future use. and held reserved line KEPC to a construction was let Lawrence and removal contract, of this 1946. Pursuant terms in July, company KEPC to secure and deliver to releases signed by contractor releasing of the fee title of pertinent properties, the owners incurred in connection liability damages and all KEPC dismantling and removal. of this Upon completion with such KEPC a contract, construction delivered to release company subject property. Leland pertaining signed by Elecrtic Power merged the Kansas into In June, Company all including and its easements became vested properties, KP&L in KP&L. December, 1950, through February, months of
During its Ordnance line Sunflower over Arm- KP&L reconstructed land, utilizing granted by Armstrongs. strong prior easement from the contractor the line release building KP&L received Again *5 during incurred Leland for by damages executed as landowner reconstruction. and KP&L in 1951— in 1927 Periodically commencing —Cities of record in connection mortgages
each executed and filed appellee its mortgaged including with its in which each financing property in which warranted it owned easements and each the indentures and that such property covered property affecting free and encumbrance the title. clear November, 1961, In Leland and Eleanor leased a of the portion Shull for the purpose operating golf one Ward land course thereon. In 1962 Shull took possession lease, which to renew years five option course it. period, operate golf like and has continued March, 1962, Leland Cities to furnish an additional requested on on the course. gas buildings golf serve tap In May, a domestic meter and regulator placed level, sixteen-inch pipeline, extending ground above the for the gas domestic service to the purpose providing property. trial court also included facts presented deposi- and officers of each who utility tions affidavits of several senior were concerned and familiar with the and purchase continuously of easements each These instruments showed holding company. easements, the custom and obtaining of each in practice and demonstrated the belief of all records knowledge company each that it the easements in owned company question. 20, 1929, July Septem- that from and after parties stipulated 28, 1946, 13, 1939, Cities has August
ber been the open, exclusive and continuous of the easements of right-of-way executed Leland and Eleanor regulator the meter lease on those dates and that from and after respectively, February KP&L and its title have been predecessor open, of the transmission line ease- exclusive continuous that date. ment Leland and Eleanor on executed Richard Armstrong It was further that the stipulated appellants aware of the existence of the Retty pipelines Grisham have been extending the transmission lines through and related facilities and of fifteen years prior for a in excess the subject property of this action. commencement that the concern over the restrictive terms The record reveals led to this lawsuit eventually the 1915 will which developed constructed a county sanitary new sewer Douglas 1967 when and established a sewer district embracing part system *6 construction, land. Following assessments were levied Armstrong affected; the lands that levied against against land large it unless the so could be met land could be subdivided and sold —which course could not pursued view of Leland, restrictions testamentary upon then life tenant. Accord- Leland and his ingly joined two children some kind of declaratory 1968, action to terminate judgment brought January, the life remaindermen, herein, in the tenancy and to fee title place appellants 3,1968, which was done. On December Leland apparently executed children, and deed to the warranty premises delivered to his who 1968, 19, on December commenced this action against appellees. at trial Further evidence will be mentioned in presented connec- tion raised by parties. with the issues the following trial-court entered findings conclusions: years beginning periodically since, in 1929 and “Over the life tenant gas gránted pipelines regulator hád certain easements for and a meter and power lease to Cities and an easement for a line to K. P. &L. And on the grants, theory joined plaintiffs, by suit, that had not such the instant demanding grants be are that such declared void as to plaintiffs and if plaintiffs permitted adjudged that such be then to seek the same amount granted K. & from P. L. and Cities as would be if such utilities were now condemning rights such in said land. pre-trial “Under the order basic issue is whether or & not K. P. L. and acquired respective rights they possess have Cities- now in the land in by against plaintiffs. possession adverse stipulations through 70, plaintiffs “In view numbered 55 it is a fact gas pipelines power have been aware related facilities and of the line, through question, and are all of which extend the land in for a years prior of more than 15 to the commencement of this action. record, including affidavits, exhibits, entire but From the not limited to all following depositions by stipulations, statements are the Court found July proven from and after to be facts: 1929 Cities has been in the open, possession by exclusive and continuous the easement shown Exhibit ownership; September C that from and under belief of after 1939 Cities open, possession has been in exclusive and continuous of the easement by ownership; August D under a shown Exhibit belief of that from and after open, 1946 Cities has been exclusive and continuous regulator by property described in the meter lease shown Exhibit X ownership; February 25, belief of and that from and after interest, predecessor open, K. P. &L. or its in title and has been in the by exclusive and continuous of the easement shown Exhibit S ownership. under a belief of by “An examination of the instruments which the life tenant and his wife granted above mentioned easements K. P. &L. and to Cities reveals way grants perpetual first such and in no limited. The time original grant since the in 1929 that Cities was an easement to Cities grant made it a life tenant was aware of the claim that by plaintiffs’ attorneys letter dated December 1968 from one Similarly such claim was contention was asserted. the same addressed attorney. K. P. &L. December suit letter of This from such 19,1968. filed December “From the entire record is concluded that: respectively acquired “1. Cities and K. P. &L. the easement and have subject other exhibits in the real estate in the several as described against plaintiffs’ plaintiffs prescription hereinbefore mentioned applicable action as barred defendants Cities and K. P. &L. is (K. 60-503; 58-2523) statutes. S. A. K. S. A. Actions, (53 “2. K. S. Lim. A. 60-503 is a C. S. valid enactment. J. 2.) Sec. light unnecessary foregoing “In or de- consider conclusions it is termine the pre-trial other issues framed order.”
At this it point be framed the noted that “the issues other may by pre-trial order”, memorandum, in spe- mentioned the court’s trial the S. A. (K. defense the of cifically included of statutes limitations 60-507, 60-508), as well estoppel. those of laches
Appellants first attack the trial finding court’s respecting appellees’ belief of ownership. They assert appellees could have entertained a valid of belief of ownership perpetual easements because of evi- dence offered them consisting of statements made by allegedly by Eleanor Eleanor Armstrong. testified in her she deposition had several occasions stated to representatives that appellees she had no or need to sign easements because her husband life estate property. also only Appellants fact point one of the releases contained the name M. “Anna Armstrong” typed —which fact remains in the unexplained record. Appellants’ con- tention be of. quickly disposed Eleanor’s illustrates may testimony one area of case, is, fact in the disputed that whether appellees entertained a belief ownership with respect to easements. The trial did. court held This finding was one of fact and the they in the record that supports evidence finding. No useful purpose by would served further detailing evidence. A mass and exhibits offered each appellee concerning testimony .credible manifested bona its acts fide reasonable belief of ownership Appellees easements. rate paid going perpetual ease- ments, recorded the instruments them and promptly granting they made property entered substantial expenditures they and maintenance of their installation facilities. On the other opposition, Eleanor, hand, appellants offered by testimony con- did contain trial court. not considered credible was contradition and some vagueness siderable and ambiguity Admittedly, representa- no pressed. she when was hedging closely or Mrs. with Mr. either tive of Cities had contact California. More first easement they signed when hus- of her the presence had in that she her assertion importantly, her the true nature of informed appellees’ representatives band the latter’s contradicted husband’s interest differ- any factual finding resolved own The trial court’s testimony. against ence appellants. were coerced into argue parents signing
Appellants had the of eminent domain and power easements because appellees kind acts should be excused. No issue of this those involuntary trial, it at record nothing supports ever raised an afterthought. can termed matter against also assert no easement arise prescriptive could Appellants first became entitled to of the prop- them because they begin and the did not prescription in 1962 fifteen erty year Appellants until that time. select to run them year it then entitled because was as the date became golf under the ten course year Shull entered the of the terms his grand- Leland in violation granted lease be noted insignificance of relative father’s will (although may 5, 1968, appellees, appel- in their letters to as December that as late he fife estate terminated when first contending Leland’s lants were in 1929). Cities’ easement granted into account the impact 58-2523, do not K. A. take S.
Appellants *8 which provides: may person seized of an estate in remainder or reversion “A maintain an trespass injury inheritance, notwithstanding for or for
action to waste an intervening years.” for life estate Ass’n, In Clark v. Butler Rural 344, 177 Kan. Electrification 240, P. 2d this that court construed which is 58-2523 in now a situa- There, tion that at owner, to bar. the fee analogous plain- mother, line tiff’s transmission perpetual easement to conveyed utility. defendant The easement was not recorded and no lines at that time. In 1947 the were erected mother the prop- conveyed son, the life plaintiff, reserving to her herself a estate. Lines erty in 1948 and 1949. The were constructed mother died in 1953. filed suit promptly Thereafter for plaintiff utility ejectment A and for statute to damages. particular applicable electric co-operatives a two of limitation provided period year within bring which to actions transmission ease- concerning line ments maintained object without consent of those entitled legally (G. S. This court treated maintenance of the lines 17-4627). estate, as an had notice. Plaintiff plaintiff injury contended his cause of action arose when estate his became contention, This court rejected holding possessory.
the provisions of the statute had the quoted plaintiff above as remainderman the action for to the prosecute any damage re- mainder estate and further that his failure to do so after two years continuous maintenance of the lines barred the suit.
Under of Clark is immaterial that rationale in the instant trial case the court made no determination specific as to when life .Leland’s estate terminated. there was no as
Appellants argue trespass revealed in Clark be- lease; however, cause Leland could give Leland could encumber the a three period no had property only year —he perpetual grant make unlimited authority he fact made. mind stipulated Also to be borne in is the fact that had appellants knowledge maintenance facilities for more than utility fifteen commencement prior of this action. years argue further utilities’ entries Appellants initial were per- never into ripen missive could prescriptive rights. In support our possession cite cases under adverse statute effect prior 1, 1964, which are inapplicable. Our present statute, January 60-503, S. A. provides: K. possession. against any shall person No action be maintained “Adverse recovery open, been of real who has exclusive and continuous property,
possession knowingly either under claim such real adverse or ownership, (15) years. for a of fifteen under a belief This section apply (1) year action commenced within one shall not after the effective act.” date this contains nothing limiting
The statute its application to any par- of situation. Stark v. Stanhope, ticular type to say respecting P. 2d we it: January 1, 1964, “The section became effective and amended G. S. 60-304, Formerly, possession required Fourth. the elements to be “hostile,’ but the section notorious’ new eliminated hostility the element of changed conception as essential adverse the common-law necessary, however, the doctrine. It is still to succeed on a claim of title possession, adverse ‘open, shall have been exclusive and *9 holding, hostile- an adverse or statutory period. lieu of In the continuous’ for ” , ownership.’ (p.,,432.-) . a belief of may on . based the claim bé Annotated, 60-503; Procedure; Gard, In of Civil § Kansas Code of owner- on belief a claim based respecting the comments author ' Í ship: or the Estate may makes the belief concept present as it difficulties “This some distinguishable Belief is possessory matter. a relevant of mind of claimant statements to has made They synonymous. he Unless from intent. are challenge bit difficult evidencing contrary it is a attitude someone a mental Hostility, on the other person effectively testimony to his belief. of a conduct, hand, verbal or ordinarily is evidenced a of intent and is matter inquiry otherwise, susceptible than the factual effective and much more issue of belief. provision may however, hardly denied, serve that the new be “It can public generally. standpoint The uncer- purpose of beneficial tainty boundary presents It is problems considerable concern. of lines of probably disputes of mistaken on basis more realistic to resolve such open, part party and continuous on the of has been in exclusive belief who hostility adjoining possession, adversely and in on an intent to hold than good concept faith than of At least the “belief’ has more of element owner. acquire concept essentially ‘hostility’ a matter of bad faith intent to which is something own, process claiming does not of it. recognizing goes saying without that the rule of this section the element “It recognition ownership apply has of of there been belief cannot where boundary uncertainty nothing, true location. Where short- of n 522.) holding support (p. . the claim.” will suffice intentional adverse Annotated, Procedure, of Statutes Code Civil Kansas 5 Vernon’s comments: 60-503, Melvin C. Poland makes these Professor § ownership’ language statute “belief of has been substituted for “In the holding. may change of be assumed the element “hostile’ the common law challenge holding, the character it difficult to belief more will make -intent, -.holding normally being involves an of mind whereas hostile a state respect holding.. may or.statements in such overt acts WTiile evidenced it legislation designed acquisition, by argued should not be .to make ownership act, possible easier criminal obtajn-,f must policy '(the.curtailment behind two-fold statutes limitation that the admitted rewarding stale.claims, ipade and the individual who has beneficial long period time) accomplished productive over use the land will be concept ownership” By new of ‘belief of more established often-under ' ' (p. 7.) statute." statutory we see authorization of a Thus doctrine of-adverse in the prescription case of (or easements) gives in good .to those who faith enter and hold protection possession of belief it doctrine, land for is theirs. The prescribed course, running is based of the statute of limitations *10 The for the rationale property. to of applicable recovery 2d, 3 Am. in expressed enactment of of statute is type this Jur. 2, Possession, Adverse thus: § operate, rule, only as a not to cut one’s "Modern statutes of limitation off right bring recovery to an which has action of been in possession specified time, the adverse of for a but also to vest the another public policy, with disseisor title. These rest on wise which enactments regards litigation repose with disfavor and aims at the of conditions which the parties unquestioned long enough to to have suffered remain indicate their acquiescence quiet purpose land, The of therein. these enactments is to title to power so, legislature doing, and neither the nor to do the wisdom of so question. open They emphatically justly to been have therefore repose. punish neglects denominated not statutes of The intention is one who rights, protect possession to assert his but to those who have maintained the specified by right of land for the time statute under claim of or color title. of possession of “The establishment title adverse is said be based theory presumption that has the owner abandoned the land to the adverse possessor. maturing It has been said that the doctrine of also title adverse one, ordinary under of care, color is that where of title exercise improve to enter is induced land because he has some written naturally layman title evidence of that would induce a to believe that it vested professed pass, unjust it him what would be to enforce the of brings statutory period.” (pp. no action until end another who 80-81.) on cases Appellants rely ruling that as devisees an estate in remainer the possession of estate by tenant, the life or by to whom the life estate has been persons conveyed, not does start the running any statute limitations or prescription during the lifetime of the devisee life possessions estate. Such could very their nature lack permissive and of adverse was the basis of holding these cited .Typical them.are cases.. Peck Ayres, 79 Kan McLain, v. 100 Pac. and Dewey v. 7 Kan. which were concerned with holdings hostile of realty— under which only type prescriptive rights could then acquired. They simply are not relevant where are asserted under the belief of ownership concept our present' statute an'element. hostility is
The hostility element of in the old method oftentimes smacked as, of the element of bad faith example, squatter who knew he no semblance of right could vested good become Gard, title 522). We have no (see1 hesitation supra, in con- p. cluding new ownership concept legisla- belief faith, is,, ture had mind of good element the belief must be faith and reasonable under all good the facts circumstances. .and Douglas probate was admitted H. of W. will and authority limited estate revealed This instrument
county. of record and courts are Probate courts Armstrong. O. of Leland constructive records constitute held that long it has been Olson, 84 Kan. (Walline therein contained the matters notice of effect, any, if arises 426). 113 Pac. such notice recording, be derived notice to constructive of law. by operation is imputed that which being opera- sufficient commence notice constructive The doctrine Black, in Black v. was examined of limitations the statute tion of for fraud brought was one action Pac. 662. The Kan. as administratrix of acted who had against their mother children *11 by law required prior As guardian. father’s estate and as their in court probate the filed the estates mother closing of the transactions, constituted the activities true accounts of her which years not until alleged brought eight fraud. The fraud action was guardians after the and the majority child had attained youngest account had been closed. This court held: phrase, discovery fraud,’ ., “The ‘until in . . code . . . the provides years which on the limitation two in ‘action for relief the case of ground fraud,’ provides and which also action in such ‘the cause of fraud,’ discovery case not shall be deemed to have accrued until the the necessarily party complaining until does not mean had actual notice of alleged committed, the fraud to have been notice the fraud constructive though may to is sufficient set the statute be actual motion even there no discovery public required by notice. the means of lie in records law Where to very kept, hand, be which involve the transaction in the interests parties litigation, public records themselves are sufficient constructive 2.) (Syl. set the notice of the fraud to statute motion.” ¶ Knowlton, foregoing rule was iterated in Hutto Pac. added it but court this explanation and caution: Black) admirably expressed, [in rule “The but foundation of was stated, may definitely not so public be said to consist in this: Where a required by kept respecting record is law be as a source of information property duty upon anyone and interests a rests to whom the information improve diligence opportunity learning is material that which opportunity
the record discloses. It follows that neglected if the be person bound interested will be to the same extent as if he had in fact exam- basis, But ined the record. the rule is no broader than its reason if for obligation record, person exists to consult the no or if interested be circum- taking advantage opportunity, of his vented the rule does not obtain.” (Emphasis 448-449.) supplied.) (pp. a claimant imparted The rule notice to be respecting constructive reason faith adverse of belief of good possession relying n Possession, 170b, S., is 2 C. ownership stated in Adverse § J. this fashion: . notice of a defect [I]t . is a rule that constructive well established impeach good of claimant since is in the title is not he sufficient to faith duty imparting conveyance no ‘If under notice. to examine the records such successfully prescription could no one could who have dis- invoke statute buying public covered examination of the records before title, plea available because no seller had no would never be one having having except therefore could invoke it a valid title and no need one validity prescription.’ actually title If a knows that his has no claimant whatever, acquired then it his color of title or cannot be that he made his said right, title, 745.) possession good (p. claim faith.” ibid., 98, statement:
Also, 2d, we note this in 3 Am. § Jur. required generally . . true that one is not examine the [I]t “. contemplates purchasing public regarding title to real he records 181-182.) precedent good (pp. a condition faith. . . .” are satisfied with the soundness foregoing We rules approve adopt very them. The doctrine adverse it, presupposes defective title but for claiming which there would no reason to claim title adverse possession. It is ripening of certain types of into title lapse ibid., of time 2d, Am. (3 1). legislature The Kansas has § Jr. authorized tihat possession to under a belief ownership, concept may be judicially nullified.
In the case at bar or their appellees predecessors title relied *12 directly or abstracters’ through agents certificates of owner- not uncommon utilities and others in ship practice acquiring —a in the nature of easements. The facts established in the appellee record disclose neither had any knowledge of any defect 5, until receipt 1968, in title December letters from appellants’ Prior attorneys. to this time Leland and his wife had continuously Leland to be the represented owner of premises. As late as 1961, lease, in the Shull they represented that Leland’s ownership was without limitation. Appellants did nothing while appellees constructed maintained their facilities on land although were aware of activity. There nothing is shown in the rise giving record to any obligation on the of part the appellees to consult the probate court record.
The of what constitutes faith good in claiming hold under belief a of is a ownership question for the
312 Mattison, L. v. U. S. trier of the fact How.] (Wright [18 indicated the evidence of 280). already support appellees’ ed. As facts estab- overwhelming of and no ownership belief in maintaining lished which their faith way impugn good this belief. concept assert “under a belief
Appellants claiming 60-503, as authorized K. S. A. should not applied be ownership”, and that to do so would retrospectively unconstitutionally deprive due process. argument them of without The is under this year concept should commence until period fifteen date new 1964. The January the effective statute — Davis, of this argument Administrator support case cited 206 Kan. 476 P. 2d Union 635. This case Railway Pacific cure, a statute enacted to involved constitutionality retroactively, date of a prior particular deeds recorded decision of this a deed purporting joint court create construing tenancy that rights This court had become held vested estate. decision and the legislature former could not enact reason of the of which be to effect would those impair rights. statutes the at to the case no bar. application decision has rule respecting constitutionality general statutes of limi- S., Actions, C. Limitations of is stated tations as § J. follows: power legislature may limitation; has statutes of “The enact enact a may brought which limits the time within actions be which statute to enforce previously may there was no of limitation demands where or it may change existing prescribe periods statute limitations. different species obligations may different time within enforced. Such usually particular objections. been sustained various statutes have action, existing causes of “As to statute of limitations must afford a the commencement of action before the reasonable time for bar takes effect. immediately existing operates remedy, to cut off the statute
If within give party opportunity no so short time as reasonable to exercise his remedy, application then the retroactive of it is unconstitutional as to such party. pronounced allowed The time cannot unreasonable it is so unless practical short as the circumstances to amount denial of the 906-907.) (pp. itself." Kansas adhered to g., has decisions foregoing many e. (see Education, State, rel., 295; ex v. Board 21 P. 2d Reed, 602, 142 In re Estate 157 Kan. P. 2d 824). following Reed the appears: *13 remedy rights only, impair “A statute of affects the does not limitation power placing obligations, legislature a limitation to enact a statute and the has probate, filing application of a as for admission will to time for the limitation, long though prior so reasonable even statute fixed a different purpose given proceeding before time for that is for the commencement of 4.) (Syl. f the bar of new statute takes effect.” take February K. enacted S. A. 60-503 was into law year period effect 1964. Its terms January provided to the applica- of action existing prior the commencement of causes of limitations. time tion of the bar of the new statute State, rel., ex v. allowed 60-503 must be deemed reasonable (see Education, Board supra.) could not Finally, acquire Cities appellants contend appellee to the meter and lease because prescriptive rights regulator terms, indicated, for ten of the lease. term was primary As of ten thereafter to annual renewal years, subject upon payment dollars contained lessee year. proviso The lease the further per could of one dollar cancel at time after the upon payment of one of the lease are expiration year. Appellants say terms ambiguous and therefore cannot the basis for pre- the lease rights. cogent argument No scriptive support is presented was, assertion and we find no merit in Cities’ it. The lease at option, its terms and perpetual by convey rights valuable purported the nature of an easement. In case of the oft-cited Insurance Co. Haskett, 67 Pac. this court stated: prescriptive right way private substantially quality
"A a is the same in substantially and characteristics and would arise in the same manner as would occupancy.” (p. 96.) title to land adverse We conclude the evidence adduced by appellees sufficiently brought into K. S. operation limitations A. 60-503 prescribed and the trial court for them on entering did not err judgment realty basis they acquired prescriptive question.
One record on appeal further matter should mentioned. The designated by ap- consists of 242 two-thirds pages, costs, unsuccessfully, pellees. sought advancement of Appellants unnecessary ground the trial court as to this record on the Our matter here. designation renew the appellees underdesignation by appellants perusual of the the record indicates the costs conclusion Our overdesignation by appellees. the parties between equally record should be apportioned *14 Ecord, Johnston, 521, it is v. so ordered Administratrix 196 Kan. (see 990; [e], xxvii, 2dP. Rules No. 3 and 6 205 Kan. xxix). The judgment is affirmed.
APPROVED BY THE COURT. J., dissenting: The bombardment of this court Schroeder, a 252-page record on designated most of which appeal, by appellees, confusion created to summarize attempt evidence tend to obscure opinion, simplicity facts and the issues I presented. cannot court’s agree with the decision in several particulars.
Title to the one-half section of real estate in question passed under the will W. H. Armstrong, duly admitted to in the probate probate court of Douglas Kansas. Final County, settlement under will March, was made in 1919. The will devised a life estate to Leland children, O. a Armstrong with remainder in fee to his herein. appellants The life of Leland estate O. Armstrong subject to a prior life estate devised W. H. to Anna M. Armstrong, the testator’s wife and the grandmother of Leland O. Armstrong. Anna died in April, her terminating thereby interest in the real estate.
The instruments by which the appellees acquired their easements for right-of-way purposes were executed by Leland O. Armstrong wife, and his who were in possession of the real when estate instruments were executed.
The instruments by which these rights-of-way were granted to the appellees may be described as “quit-claim” is, in form. That did not warrant title of Leland O. Armstrong and his wife or undertake to defend the appellees should the grant be questioned in any way. claim of adverse possession herein asserted by the appellees
is against remaindermen, the appellants.
Long before the turn of the century the Kansas Supreme Court held that as against the devisees an estate in remainder the possession of the estate tenant, by the life persons to whom the life estate has been does conveyed, not start any statute of limitations or prescription to running during the lifetime of the devisee of the life estate. v. Ayres, 79 Kan. (Peck 283; 100 Pac. McLain, and Dewey 7 Kan. 126.) The court relies on Clark v. Butler Ass’n, Rural Electrification 279 P. 2d for the proposition the two-year transmission electric limitations, the erection of concerning statute of Kansas, cooperative or distribution lines life tenant while the remainderman commenced run the fee simple tenant owned the life was still in There possession. conveyed She later easement. perpetual title when she executed there Furthermore, the court was life to her estate. reserving son barring of cooperatives in favor statute specific with the impressed two years of a expiration them “after the actions against tenant contended life lines.” The maintenance of such continuous beginning should construed as (G. 17-4627) statute S. became his estate possessory, him at the time to run against *15 but court said: the warranting the sus- authorities know of no cited to and “. . are . We confronting facts and position the taining statute and under our his of 346.) (p.
circumstances.” the possession adverse was not confronted the court In Clark adverse possession cited on heretofore statute, and the authorities McLain, cited to supra) v. Dewey Ayres, v. (Peck supra, as rejected case but were in the die in the filed Clark court briefs cases on adverse possession These being immaterial to the decision. law today. the Kansas They have been are of never overruled. tenant, tire life Armstrong, On the facts Leland O. in case words, can the privity. appellees are In other appellees assert based rights-of-way no of their right ownership to the adverse S. A. under a “belief of possession 60-503) statute (K. as Leland O. ownership” long the life estate of real estate continues to exist. McLain,
In this connection it v. was said supra: Dewey estate, possession Entering “. of a . into claimant life his . then as the possession to, and in subordination to the was not adverse but consistent with possession set a statute of limitations to reversioner. Will such running? 241, Ordinarily Smith, of 9 not. case Kirk v. Wheaton Mar- shall, J., says applicable C. limitation laws has been of rules ‘which recognized England, in the courts of all where and in others the rules estab- adopted, is, possession, give title, lished in those courts have been that must adversary word, indeed, statutes, is not to be found but —the plainest require justice employed.’ dictates of common it should be ‘It equally legislators would shock sense felt which must be judges, permissive, entirely if a which consistent with the another, silently title of should bar that Several title. cases have been decided principle in this generally court which the seems to have been considered as acknowledged, Pennsylvania particularly State it has been ex- pressly recognized. To allow a construction would be to make a different 316 encouragement statute to
statute limitations a statute fraud —a by professing hold under it. title another one man to steal the enable (Emphasis (pp. 132.) added.) a construction.’” No latos admit such assigns a life tenant or his are Where assigns holding that the there is no property, presumption remaindermen of a a claim adverse life tenant was under Electric v. existence the life estate. during (Thompson Pacific Co., is that Cal. Pac. Ry. 220.) presumption estate, actual during intend to hold the life unless some notice forth that a estate is brought greater remaindermen Lemoine, 97; claimed v. 156 Ala. 47 So. adversely. Hays (See 281; Mills v. W. and Cessna v. Pennington, 213 Ark. 209 S. 2d Carroll, Kan. 290 P. hold 803.) 2d To contrary would be to impute bad faith to the life tenant and assigns knowledge thereof to the remaindermen. (Thompson Pacific Electric Ry. On in the case the supra.) “quit the facts instant claim” grants to the appellees than a greater significance have no quit-claim deed to real that the property, signifies grantee acquires greater no interest than the grantor convey had to or assign. The recording of the right-of-way grants by appellees, which the court seems emphasize, does not alter the situation. Nowhere in the findings made trial conclusions court is there, any indication when the holding easement under the possession statute by the adverse commenced appellees to run *16 against the remaindermen. be, the facts here
On the not presented remaindermen can held K¡ accountable for an failing bring to action authorized under S. A. 58-2523., There is indication no in record the grant of a the. to-each right-of-way herein, the appellees of or the use of the right- that, .them, of-way by constituted or it a trespass< waste causing injury to the n remaindermen’s interest the real estate. The appel- lants’ claim in this action is founded upon the to right possession. (When the life tenant five-year executed a lease on the land in Ward to Shull on November a golf course, the lease to commence March with a provision for renewal, the appellants brought tenant, action against the life the appel- lees others within the fifteen-year period posséssion of the land remaindermen, on the ground that Leland O. Armstrong violated life, conditions imposed upon his estate.) The appellants are denied relief for specific possession of the real estate of free the easements and are relegated to compensation for ’damn convenience the public of reason only by appellees ages domain). of eminent having power necessity (the appellees upon action, depended of right had no The appellants to entitled until possession, to antedate the right appellees not give This does the real estate. or trespass assertion estate with termination the life There being Ry. supra.) Electric (Thompson waste. Pacific interest, it to remaindermen’s waste trespass no or evidence assertion, the court in by as it was mere by must be assumed A. K. S. 58-2523. relying upon arbitrarily to ignore court purports
The written for the opinion effect, that the appel- law. court seems say, The to foregoing a “belief claiming lees were to the remaindermen under adversely If this is the life terminated. ownership” long before over- estate must presumptuous the court’s be said construing opinion, making court is dual approach, being the second the life estate of Leland O. Armstrong terminated more than 15 years prior action. appellants’
The approach of the second court is indicated its approval the shotgun finding made trial court as when the adverse holding, appellees began run against appellants. The detailed recital facts with emphasis forfeiture provi- in' sions the will likewise embraces the veiled assumption that the life estate terminated than more 15 years prior filing appellants’ action oh the theory the life tenant violated conditions imposed his upon life estate. (This point urged appellees brief, as a ground for the trial upholding court.) erroneous, merits consideration for it is point
This likewise in my in the will opinion. provision of W. H. Armstrong setting up life Leland O. is Armstrong quoted éstate the court’s need bé repeated. provision opinion quoted indicates Leland the life O. subject estate termination ¡the of certain conditions. The happening provisions here material read: Armstrong, way any time, any make, . Leland O. shall at or in “If . . any deed, mortgage, lease, equipment or deliver or instrument execute' grant, convey, sell, attempting mortgage 'writing purporting or ’in other- estate, except or rent the same for a wise alienate said lease *17 years any time, more at one or if he suffer or than three should allow
itot taxes levied on said real arrears than the assessment estate more or satisfy estate if said life estate said real shall be sold to years, two the 318 him, judgments any against then
the rendered such an event court cease, . . . shall determine and be . . . estate life forfeited. ” (Emphasis added.) . . . opinion the court in its Language emphasized by similar in a life estate with conditional limitations was will a granting 823, 494 1081 described in v. P. 2d Conger Conger, (not distinguished cited There the court between court). In condition conditional limitation. the opinion subsequent court said: distinction, however, subsequent “The real between a condition and a con- upon ditional limitation is that in the former the is voidable the election estate person imposed, while in favor the condition is the latter the whose estate is void occurrence of the that would terminate the event (p.829.) estate. . . .” distinction case and Conger between will in the provisions nature of the will the court is the presently before imposed. conditions W. H. must be when emphasized his Armstrong' executed will right-of-way there a gas half pipeline across the section estate in question, wife, Anna, he and his granted predecessors (assignors) Service Gas construing Cities Company. material the will provision of here in imposing the con- ditional limitation it is apparent restricting W. H. Armstrong was the limitation conveyance life estate the one-half section of real estate tenant or alienation life otherwise accomplished.
The term “alienation” has been
as a
defined
voluntary
complete
transfer of
another,
estate,
transfer of real
short of conveyance of
title, is not an alienation of the estate. No matter in what form
be,
sale
unless title
may
purchaser,
to the
conveyed
estate
is not
v.
“alienated.”
Madison
Mutual
(Masters
Insurance
County
Benton,
624;
Hiles v.
903;
N. Y.
111 Neb.
196 N. W.
Browne,
664;
Blank
A. D.
216 N. S.Y.
and Nichols &
Shepard
Co. v. Dunnington, 118 Okla.
Forfeitures not under the considered are favored as exactions, harsh possible. (37 odious and to avoided where Forfeitures, C. S. are looked §5, p. 10.) Forfeitures J. courts, favor enforce a forfeiture and one who seeks to v. Barbara Oil must himself be free (Storm blame.
Kan. 2d Under these circumstances Cities Service 417.) P. lease and regulator no to assert meter Company Gas is in position to do estate, it as attempts a forfeiture of the fife accomplish in its brief. noted, Service Gas Com-
At this it should the Cities juncture, this to Leland O. pany paid per year rental $10 this until granted time it was regulator meter lease from the ad- to me is an absolute It seems action Was commenced. in derogation Gas Company mission Service binding upon Cities on a “belief easement based its prescriptive asserted claim to O. recognizes Leland the remaindermen. ownership” against it is in servient Armstrong, privity, with whom owner estate. K. S. A. 60-503 as a of limitations the court
By classifying statute its claim “under belief justifies application retroactively new under the adverse ownership,” entirely which is an concept possession statute. In this amendment the adverse respect pos- statute, session new procedure, as now code civil appears 1, 1964, the substantive changes effective January parties. *19 1, 1964,
For in this case example, prior January appellees were required to hold possession knowingly adverse and in open to the owner of the hostility They were property. required to hold possession of in this manner for a property fifteen period years before possession their into ripened By title. admission at no time appellees claimed title to easements knowingly or in adverse open hostility to remaindermen this case. They candidly admit their claim to a easement is based prescriptive Now, a “a upon ownership.” “belief of if belief of ownership” 1, 1964, insufficient prior January can how it be said the appellees have claimed adversely for of fifteen years under the present (K.S. 60-503.) statute? A.
To
approach
another angle, may
be said
on the date of
each of
remaindermen’s birth each acquired a
vested interest as
remainderman
the half section of real property
Thus,
in question.
anything that
his right
affected
to the property
31, 1963,
affected a
right.
vested
As of December
the appellants’
vested right was not affected in any
by adverse
way
on
possession,
facts
this case.
If
statute is given retroactive application,
the one-year period of limitation imposed by the
legislature
60-503,
actions commenced under
supra, would be
sufficient
divest the remaindermen of their interest in the real estate on a
“belief of ownership.”
my
title cannot
opinion
ripen by adverse
possession founded
a “belief of
ownership”
60-503 until
1,
To
January
1979.
hold otherwise would violate the Constitution
of the State of Kansas and the
Constitution
United States in
that it would deprive of their
appellants
without
due
rel.,
law
without
ex
process
just compensation.
v.
(State,
491, 500,
Comm.,
Public Service
135 Kan.
321
Comm.,
Public Service
If the
supra.)
given
statute is
retroactive
application and destroys
vested
it is
impairs
unconstitutional.
v. Union
(Davis,
Railway
Administrator
Pacific
Wilson,
635;
206 Kan.
476 P.
Kan.
2d
v.
201
433
Lyon
314;
213;
Warren,
2d
v.
P.
192 Kan.
387
2d
P.
see
Johnson
Doe,
643, 654,
Eaton v.
Our court has held is statute of where act more than a mere limitations it v. will have (Serrault prospective application only. Price, Brown, supra, and see a statute State v. Where supra.) operates rights retrospectively divesting to effect of vested property in real Administra property it is unconstitutional void. (Davis, Union tor Railway 635.) 2dP. Pacific Gard, Annotated, 60-503, Procedure, Kansas Code of Civil Sec. the author sets forth the the the new intention of draftsmen of code in the provision “Advisory Committee Notes” as follows: “It changes principles will be noted that this section the common law pronounced by Supreme purpose adverse as the Kansas Court. The disputes, to particularly, boundary is eliminate been as to have lines which long period years.” treated as correct over The author’s commentary is set forth the opinion court’s indicates the in the change was designed statute line boundary disputes. In these situations notice imparted by Acts recording the does not affect parties, the because resort to the record would actually is land tracts two boundary between
show where line. boundary to the true respect with situated be helpful would the court prepared a syllabus While other among ostensibly, holding, its the basis of inform the reader who any person A. 60-503 holds that under K. S. the court things, of real and continuous exclusive has been open, good under a here) right-of-way, an easement of property (or under all must be reasonable faith which ownership, belief circumstances, years acquires fifteen (15) facts and for a Furthermore, absolute title is adverse rule possession. that is suf- whatever the real nothing regarding property on record ficient as he impart notice the disseisor so long constructive has no actual notice of case (This infirmities his title. grantor’s the fact dis- complicated by that the corporations, disseisors are infra). cussed seems me the court’s im- position on constructive notice
parted by recording title instruments to this: These amounts public utilities with a (appellees) competent staff at their legal disposal are not bound by notice record title constructive which imparts, remaindermen, but the minor whose vested easements, were record before long granting of are notice bound subsequent recording imparts, easements even though remaindermen were minors when the were granted easements and recorded. The remainder- men are held to be bound thát each by constructive notice claiming utilities easement.” “perpetual remaindermen’s that knew stipulation utility lines were on is not tantamount to on their knowledge part that the utilities were assume, easement. had claiming perpetaual They a right knowledge actual contrary, absent utilities their easements in with grantor holding privity consistent limited estate. his facts in this case utilities On the should be held to constructive Leland O. a life Conceding estate. notice in the court’s opinion regarding to be as stated constructive law *21 in possession, defects title where claims adverse notice of to the facts in this case. Here utilities application it no has directly their easements were with the they acquired dealing when possession in half section of land in which person Armstrong, was Leland O. the life tenant. interested. This person in real is bound to take property interest acquires One who Now, notice of in property. person the only instrument have showing Armstrong Leland O. rights H. the real whatever was the will of W. Arm- property strong, duly admitted and court probate on record probate Had Douglas County. utilities exercised what- any diligence ever, they would have found that the party a life estate. There was no in the chain title. The limited defect Leland O. instru- Armstrong very ment by which he claimed and possession. title
The remaindermen were minors throughout herein entire O. Leland and Armstrong time the utilities were dealing with each other Richard regarding question. easements A. 5, 1926, was born December and legal age became of 5,1947; and attained his rights majority on December Betty 7, 1931, Grisham born December legal age became of J. 7,1952. attained on rights majority her December in 1929 and Commencing extending through August, life tenant Cities Service granted Gas two Company pipeline right- of-way easements and a meter and regulator through lease question. granted 1944 the life tenant an easement to Kansas Electric Power Company (later merged into KP&L) the construction anof electrical the property. transmission line over charges
The court notice that these minor remaindermen with the easements were way no limited.” “perpetual
It seems to me the law which the court’s is opinion announces 60-503, court, K. S. A. topsy-turvy. encourages as construed fraud. statute is a which the title of enables one man steal another by professing to hold under it. It confers rules privileged of law least upon those entitled to it.
The legislature had no intention the law abrogating whatever of this record- regarding state constructive notice imparted by ing of instruments affecting estate titles when it enacted new code of A. procedure, civil which 60-503 part. K. S.
My with concern decision the court’s is the it will have impact as a precedent, disrupting influence will have estab- lished institutions in our society economic rely upon stability of real estate titles reason of the obligation law imposes persons notice of take matters on con- record cerning real estate.
Here dealing we are of ownership” which is a sub- “belief consideration, a jective of mind claimant, state of the possessory *22 case to have utilities in this the example, intent. For and not diligent negli- in their good ownership” “belief faith take notice to examine the record failure gence—their Armstrong claimed Leland O. instrument the notice of actual the had no court found utilities title. The trial limited estate. decision does case, court’s in facts on the
Actually, acts culpable what fraud. Of faith. encourages foster good their vested taking of are the remaindermen guilty justify remainder? to support evidence in there is opinion says court its sufficiency of presented On record findings.
trial court’s in the good in one vital findings questioned bemay faith area — found simply court trial the utilities. The belief of ownership and continuous exclusive the utilities were open, ownership. under a belief of of the easements additional In their the record both designation portions and Light Gas Kansas Power Company Cities Service “Exhibit W—Release” designated incorporated Company all on This exhibit is release for crop in the record appeal. of a “110 KV Line the construction damages arising property . .” . in blank form re- my [typed space through property lease], The release covering property litigation. here “seventy-five that in consideration of the sum of dollars” recites acknowledged, blank of which is space], receipt [handwritten L. O. “I Anna M. blank Armstrong space] Armstrong (we) [typed in blank space] (Emphasis of Douglas [handwritten County” “The L. E. and the Kan- unconditionally release added) Myers on in blank form sas Electric Power Co.” space [typed release]. L. and dated the 21st signed by Armstrong The release was O. day of 1944. July,
This unquestionably release prepared Kansas Elec- tric Power or its Company agents and presented signature with spaces completed blank typed information above indi- cated. Where did Kansas Electric Power or its Company name: “Anna agents get M. court Armstrong”? says its opinion release contained “the name ‘Anna M. Arm- typed remains strong’ fact unexplained the record.” —which Anna July, M. dead Armstrong had been over 25 years. Under these circumstances is only there one source from which “Anna Armstrong” name M. could have been acquired by utility with the real the will dealing —from H. of Douglas W. record in the Probate Court This Anna M. instrument disclosed that not County. very estate but also Leland O. a life Armstrong, Armstrong, owned only in the real in question.
Corporations must deal who are necessity through persons agents. their are of their They charged with acts deeds agents, and knowledge agents also with the which their charged are Under these “Exhibit possess. circumstances W” places record a written admission the Kansas Electric Power Company (later merged into that it had knowledge instru- KP&L) ment on record the limited Leland O. Arm- disclosing estate of strong. Good under a I think not. belief of ownership? faith Under these facts and circumstances the and Light Kansas Power be Company must charged knowledge with of the true facts regarding the limited estate of Armstrong Leland O. with whom it was dealing, it could not assert a ownership belief Otherwise, good faith. if knowledge of its cannot agents be imputed a corporate no one could entity, successfully ever a challenge corporation’s claim of faith under belief good ownership.
The trial court did not find the utilities (appellees'herein) exclusive and open, continuous possession easements a good under belief of The trial court ownership. faith was content to adopt the utilities’ relied positions agents work; employed to acquire the easements and do none the utilities’ attorneys or officers were aware of the limited estate Leland O. as indicated many exhibits utilities showing introduced their with activities and financing easements of structures and transmission placed lines thereon.
These utilities may
find
won the battle
eventually
they have
war,
but lost the
unless the legislature
They
comes to their rescue.
are
not on
one-way street
acquiring
rights by ad-
prescriptive
possession
verse
under the new concept
ownership.
—belief
analogous
An
situation is found in Potter v. Northern Natural
Gas
ments acquired Potter case. structed in accordance with law the authorized by Under tire new of adverse concept court, 60-503, utilities will K. S. A. now construed by their losing to avoid diligence to exercise the utmost required faith good who hold land easements to landowners A of an easement. belief of free of the encumbrance ownership farming op where many years, buried for pipeline, example, line, except lost to all are conducted over the becomes erations con charged who know of existence are actually those its But under recording of the easement. structive notice construc ownership”, “belief of in adverse concept possession, new longer is no recording of the easement tive imparted notice im which is on record is That possession. defense to adverse one in continuous open, material where exclusive years. for fifteen ownership under a faith good claims title belief will be probability all utility Once easement lost of eminent domain acquire resort to its powers required inflation, cir changed It will then confronted with easement. *24 City v. Kansas Spears as Potter cumstances such decisions condem & P. 2d Light Power nation proceeding. landowner, and
Any just there are can be many, diligent his negligence faith good establish under a of ownership” “belief utility. as a submitted the court respectfully judgment lower
should be reversed.
Fatzer, Prager, C. J., join foregoing dissenting J. opinion.