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Court of Appeals affirmed the district court in an unpublished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
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
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
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
about the seriousness of the problem of building over the
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.
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 ...