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March 2, 1990.

GALEN F. WIETHARN, et al., Appellees.

The opinion of the court was delivered by

Petitioner, Mid-America Pipeline Company (Mid-America), brought this action seeking a mandatory injunction ordering appellees to remove four buildings constructed over petitioner's pipeline easement and a preventive injunction prohibiting further construction. The trial court found that appellees violated the easement and ordered construction be halted but, instead of ordering the buildings removed, ordered that the pipelines be relocated with petitioner paying the majority of the costs. The Court of Appeals affirmed the district court in an unpublished opinion filed August 4, 1989. We granted Mid-America's petition seeking review of the decision of the Court of Appeals approving the order to relocate the pipelines.

Petitioner Mid-America is a common carrier pipeline company that transports LPG products and anhydrous ammonia through high-pressure pipelines. In 1960, it was granted an easement to construct, operate, and maintain pipelines across realty presently owned by appellees. Mid-America constructed three pipelines

[246 Kan. 239]

      pursuant to the easement before appellees acquired the realty. The easement provides, in part:
"It is agreed that the pipeline or pipelines to be laid under this grant shall be constructed at sufficient depth below the surface of the ground to permit normal cultivation, and Grantor shall have the right to fully use and enjoy the above described premises, subject to the rights herein granted.
"Grantee shall have the right to clear and keep clear all trees, undergrowth and other obstructions from the herein granted right of way, and Grantor agrees not to build, construct or create, nor permit others to build, construct or create any buildings or other structures on the herein granted right of way that will interfere with the normal operation and maintenance of the said line or lines."
  The Wietharns purchased the property in 1971. Although the previous owner of the real estate testified that the pipeline easement was discussed at the time the Wietharns examined the property and decided to buy it, Galen Wietharn testified that he did not realize the pipelines existed when he acquired the farm. Nonetheless, the easement was properly recorded with the register of deeds in Clay County at the time the Wietharns purchased the farm.

  The Wietharns began to develop a hog operation in 1973 by building a finishing floor, which had a concrete slab floor located over the easement. In 1978, Galen Wietharn constructed a second building to hold the sows until they had litters, followed by a third building, a grower/finishing building. Both buildings were located over the easement. A fourth building, built in the mid-1970s and referred to in the record as building No. 4, was not over the easement. Building No. 5, a farrowing house or maternity ward, was built in 1983 over the easement. The Wietharns built four additional structures in the same area that were not over the easement. Finally, in 1987, when the Wietharns were in the process of building the 10th building in this complex, Mid-America filed suit asking for a temporary and a permanent injunction to stop construction over the easement. The district court issued a temporary restraining order. The Wietharns answered the petition and counterclaimed, asking the district court to order Mid-America to remove the pipelines from under the Wietharns' buildings at Mid-America's expense.

  The parties stipulated that the easement existed when the Wietharns purchased the property and that the Wietharns constructed

[246 Kan. 240]

      buildings on the easement in 1973, 1978, and 1983. A trial to the court was held on May 26 and 27 and on July 14, 1988. Galen Wietharn testified that he first became aware of the presence of the pipelines in 1973 during construction of building No. 1, when a trencher hit a pipeline while digging a hole for installation of the water line. Mid-America patched the line. At the trial, Galen Wietharn testified that Jim Patterson, a terminal operator for Mid-America, came to the farm whenever construction occurred between 1973 and 1987, except for once when Patterson apparently was on vacation. Galen noted that Patterson was always concerned about the pipelines and informed the Wietharns that they should not be building over the easement. According to Galen, Patterson stated: "Just wish you wouldn't build on it. Damn, this pipeline is dangerous. It might blow up." This comment was repeated "a bunch of times" and Patterson was always frightened of the construction over the pipelines.

  Patterson testified that, when he was called to the Wietharns' farm, he refused to spot lines if this assisted building a facility over the pipelines. Each time Patterson became aware that the Wietharns were building over the pipelines, he reported this to his superiors. In 1978, when he reported that the Wietharns were constructing building No. 3, Patterson's superiors told him to be sure that the Wietharns knew that what they were doing was illegal. Patterson testified that the company was concerned from the beginning and, over time, concluded that it had no choice but to sue the Wietharns to stop their construction. Patterson also recognized that pilots flew over the pipeline easement at least every other week and probably would have reported the construction.

  Kent Fisher, also an employee of Mid-America, went to the farm in 1983 to put up warning and caution signs along the easement, both inside and outside of the buildings. Fisher indicated he knew Galen Wietharn's son, Bob, from high school. When Bob told Fisher that they intended to build more buildings over the easement, Fisher tried to convince Bob not to do so because, if a leak occurred, it would be necessary to dig up the pipelines, which would involve digging through the buildings. Fisher indicated Bob Wietharn seemed to think he was joking

[246 Kan. 241]

      about the seriousness of the problem of building over the pipelines.

  The manager of the central division of Mid-America, which included the Wietharns' farm, became aware in the early 1980s that the Wietharns were building over the lines. According to him, it was not a policy of Mid-America to allow people to build over the lines. Previously, Mid-America always convinced people not to build over the pipelines after talking with them. Mid-America sued in 1987 because the Wietharns ignored Mid-America's warning not to build over the easement and that was the only way Mid-America knew to stop the construction.

  In a journal entry filed on October 4, 1988, the trial court found Mid-America was entitled to an injunction to halt construction of additional structures on the pipeline easement but refused a mandatory injunction to remove the buildings already constructed. Considering equitable principles, the district court ordered that the pipelines be moved with the Wietharns paying the lesser of $50,000 or 40% of the relocation costs. Mid-America appealed the decision of the district court and the Wietharns filed a notice of cross-appeal concerning the portion of the pipelines' relocation costs assessed against them.

  Mid-America raises several issues in this appeal; however, we need address only the first as it is dispositive of this appeal. Appellant contends that the district court erred in denying injunctive relief to remove buildings constructed over the easement and instead ordering the pipelines moved.

  At trial, the Wietharns argued that the easement was unclear in stating that construction was not permitted "that will interfere with the normal operation and maintenance of the said line or lines." The Wietharns argued they were not aware of the easement when they began constructing building No. 1. When Mid-America failed to halt construction while the Wietharns built this and additional buildings, they believed this construction did not "interfere with the normal operation and maintenance of" the lines. In their cross-appeal, the Wietharns do not challenge the decision by the trial court that they violated the easement. Failure to challenge this issue on appeal precludes any argument by the Wietharns that they did not violate the easement.

[246 Kan. 242]


  Mid-America sought an injunction to stop further construction and to remove buildings located on the easement. An injunction is an order to do or refrain from doing a certain act. K.S.A. 60-901. Injunctions apply to future events rather than to past or completed acts. Mandatory injunctions require performance of an act, while preventive, or prohibitory, injunctions require a party to refrain from doing an act. To obtain injunctive relief from prospective injury, a party must show that a reasonable probability of injury exists and that an action at law will not provide adequate remedy. Mere apprehension or possibility of wrong or injury ordinarily does not warrant the granting of ...

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