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City of Arkansas City, Kansas, v. Bruton

September 7, 2007


Review of the judgment of the Court of Appeals in 36 Kan. App. 2d 42, 137 P.3d 508 (2006). Appeal from Cowley district court; JAMES T. PRINGLE, JR., judge. Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is affirmed.


1. The interpretation and legal effect of written instruments are matters of law over which an appellate court exercises unlimited review. Regardless of the construction given a written contract by the trial court, an appellate court may construe a written contract and determine its legal effect.

2. The question of whether a written instrument is ambiguous is a question of law subject to de novo review.

3. If a written instrument has clear language and can be carried out as written, rules of construction are not necessary. The principles of construction that emphasize the importance of interpreting contracts in favor of the public interest only apply when a document supports more than one reasonable interpretation.

4. An interpretation of a contractual provision should not be reached merely by isolating one particular sentence or provision, but by construing and considering the entire instrument from its four corners.

5. An easement should be interpreted to give effect to the intention of the parties ascertained from the language used in the instrument, or the circumstances surrounding creation of the servitude, and to carry out the purpose for which it was created.

6. Because easements are interests in land, subject to the Statute of Frauds and the recording acts, heavy emphasis is placed on the written expressions of the parties' intent. The fact that servitudes are intended to bind successors to interests in the land, as well as the contracting parties, and are generally intended to last for an indefinite period of time, lends increased importance to the writing because it is often the primary source of information available to a prospective purchaser of the land.

7. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.

8. The resolution of procedural questions is not specifically addressed by the Supreme Court Rules, and the Rules of Civil Procedure are left to the sound discretion of the trial court.

9. If the subject matter of a motion for summary judgment is not solely for experts, uncontroverted opinion testimony is not conclusive, regardless of whether it comes from an expert or a lay witness. Even if several competent experts concur in an expert's opinion and no opposing expert evidence is offered, the trier of fact is still bound to decide the issue on its own fair judgment, assisted by the statements of the experts. Expert opinions must be given consideration, however, and must receive such weight, in view of all the circumstances, as reasonably attaches to them.

10. There are circumstances in which expert testimony is of great value, and in those situations expert testimony may have a weight approximating that of conclusiveness. For example, the testimony of an expert witness on a subject calling for expert opinion is conclusive to the extent that it may not be contradicted by the testimony of a non-expert witness. Common knowledge may not be exercised as against the uncontradicted testimony of an expert.

11. The manner, frequency, and intensity of the use of an easement may change over time to take advantage of developments in technology and to accommodate normal development of the dominant estate or enterprise benefitted by the servitude.

12. Under the rule stated in Restatement (Third) of Property: Servitudes § 4.10 (1998), the holder of an easement or profit is entitled to make any use of the servient estate that is reasonable for enjoyment of the servitude, including the right to construct, improve, repair, and maintain improvements that are reasonably necessary.

13. If a trial court reaches the right result, its decision will be upheld even though the trial court relied upon the wrong ground or assigned erroneous reasons for its decision. The reason given by the trial court for its ruling is immaterial if the result is correct.

The opinion of the court was delivered by: Davis, J.

Ronald and Rebecca Bruton (the Brutons) own and reside upon a 5.4-acre plot of land that is located within the City of Arkansas City. Their property borders the Arkansas River and is subject to a 1935 easement granted to the City for flood protection. The City completed improvements to the existing dike on the Brutons' property. This appeal on our grant of the City's petition for review concerns the Brutons' counterclaims for (1) a declaration of the rights under the 1935 easement and (2) inverse condemnation against the City from the construction of improvements to the dike. The Court of Appeals reversed the district court's grant of summary judgment in favor of the City. City of Arkansas City v. Bruton, 36 Kan. App. 2d 42, 47-48, 54-55, 137 P.3d 508 (2006). We reverse the Court of Appeals and affirm the district court's grant of summary judgment.

Throughout this opinion, technical terms relating to the construction and maintenance of a dike, which we also refer to here as a levee, are addressed. We have included definitions of terms where needed.


The Brutons are the record owners of a tract of land in Arkansas City, Kansas. The Brutons use the land for both residential and commercial purposes, maintaining a home there and also using the property for their automobile salvage yard business.

In December 1935, the City entered into an agreement with the Brutons' predecessors in title, granting the City a right of way and easement to construct and maintain a dike along the Arkansas River to protect the City and its inhabitants from flooding. The easement provides in relevant part:

"That . . . first parties [the property owners] hereby grant, sell, warrant and convey to second party [the City], its successors and assigns forever, a right of way and easement with the right, privilege and authority to said party of the second part, its successors and assigns to construct and maintain a dike for the purpose of protecting said city and its inhabitants from damages by flood waters coming from the Arkansas River, in, on, over, through and across the following described lands in Cowley County, Kansas, to-wit: [the legal description of the 5.4 acres of property now owned by the Brutons].

"It is understood and agreed that said dike is to be constructed and maintained in accordance with plans and specifications prepared by the U.S. Army Engineers, which plans and specifications have been examined and approved by first parties."

The easement instrument further provides:

"It is further understood and agreed that second party shall have the right to locate a borrow pit on the above[-]described premises. Said borrow pit to be located on the south side of said dike and adjacent to the river and to be approximately 60 feet wide and 350 feet long.

"It is further understood and agreed that second party shall have the right to take from said borrow pit all dirt necessary to construct said dike across the above described premises and all dirt that may at any time be needed for maintenance work on said dike."

Following the execution of the easement, a dike was constructed, spanning a portion of the Brutons' property, as well as that of other property owners whose properties border the Arkansas River. The dike was constructed in accordance with plans and specifications which were prepared by the United States Army Corps of Engineers (USACE) and examined and approved by the Brutons' predecessors. We note that precise plans and specifications for the construction of the portion of the dike on the Brutons' property apparently do not exist. Instead, the record before us consists of several typical cross-sections of the dike to be constructed along the Arkansas River, which were prepared in 1935 by the USACE.

The City performed minor maintenance and upkeep on the dike (more in the nature of cosmetic rather than structural maintenance) over the next 65 years but made no major improvements to its structure during that time. No dirt had ever been taken by the City from the "borrow pit" to perform its maintenance. According to uncontested testimony of the City's engineering expert in this case, a borrow pit is "an area where soil materials may be excavated to be used in construction of the levee embankment."

In April 2000, the City, in conjunction with the USACE, attempted to enter the Brutons' property in order to make improvements to the dike. When the Brutons prevented the City from accessing the portion of the dike on their property, the City filed a petition in Cowley County District Court, seeking a restraining order against the Brutons and also an order declaring that the City had a lawful easement encompassing the Brutons' property, as well as the authority to construct and maintain the dike on that property.

The district court issued a temporary restraining order in May 2000 to prevent the Brutons from interfering with the City's access to the property to make improvements to the dike.

In June 2000, the Brutons filed their answer to the City's petition, as well as three counterclaims against the City: (1) requesting, pursuant to the Declaratory Judgment Act, that the court enter an order declaring the respective rights of the Brutons and the City under the easement in question; (2) asserting a claim against the City for actionable trespass; and (3) asserting a claim against the City for inverse condemnation. According to the Brutons, the City's improvements would greatly enlarge the existing dike, reducing the size of and eliminating access to the horizontal stretch of land between the dike and the river that the Brutons had previously used to store salvage yard inventory.

The court later granted the City's motion to dismiss the Brutons' counterclaim for actionable trespass for failing to comply with the notice provisions of K.S.A. 12-105b(d). The Brutons do not contest that ruling on appeal.

During the period that the action was pending in district court, the City continued with its work on the dike. In particular, the City's improvements consisted of:

1. "[A]dding a clay blanket and additional fill material on the riverward side of the levee embankment" in order to "[i]ncrease the stability of the levee embankment structure by decreasing the amount of seepage through the levee."

2. "[P]lacing an inspection trench backfilled with compacted clay soil near the riverside toe of the levee, wherever possible connecting with an impervious layer of clay or silty clay in the foundation of the levee" to "[i]ncrease the stability of the levee embankment by decreasing seepage under the levee."

3. Installing "toe drain or relief well system . . . to safely collect and discharge underseepage so that it could not cause piping or internal erosion of foundation materials."

4. "[R]aising the crest elevation of the levee embankment" to "[d]ecrease the probability of erosion of the crest and landside slope materials due to overtopping."

5. "[P]lacing compacted fill material adjacent to the existing levee, and/or flatten the levee embankment slopes" to "[i]ncrease the stability of the levee embankment."

6. "Add[ing] protective material, such as riprap, on the riverside of the levee where the danger of erosion due to the flow of water against the levee or foundation materials is great."

On November 19, 2003, the district court issued a Memorandum of Decision Concerning Scope of Easement. This order found that the language in the easement stating that said "'dike is to be constructed and maintained in accordance with plans and specifications prepared by the U.S. Army Engineers'" should be "construed to fix the size and location of the dike." Citing a number of authorities from other jurisdictions, the court found that the City's easement in this case could not extend beyond the geographic area covered by the easement in 1935. Thus, the easement did not presently extend, as the City argued, to all of the Brutons' property. In addition, the court's memorandum explained that because the improvements to the levee had been completed, the City's claims in this case were rendered moot. Therefore, the only claims remaining to be decided were the Brutons' counterclaims.

In August 2004, the City submitted a motion to reconsider the conclusions set forth in the court's earlier memorandum concerning the scope of the easement. The City also filed a motion for summary judgment concerning the Brutons' two remaining counterclaims, contending that the dike improvements conducted in 2000-2001 did not exceed the scope of the easement and that the City did not take any additional land from the Brutons.

As part of its brief in support of these two motions, the City included a statement of seven "uncontroverted facts," as required by Supreme Court Rule 141 (2006 Kan. Ct. R. Annot. 203). Attached to its motion, the City provided a number of documents, including the 1935 easement instrument and a report by the City's engineering expert, Eugene Erwin, a retired civil engineer who worked for the USACE for 37 years and who now works as a consulting engineer. Both of these documents were incorporated by reference into the City's statement of facts.

Notably, the expert's report stated that Typical Section No. 3 from the 1935 USACE's Construction Plan provided the most accurate blueprint of the dike on the Brutons' property. In addition, the expert explained in his report that the placement of the borrow pit on the Brutons' property, described in the easement as being "on the south side of the levee adjacent to the river," indicated that "[t]he increment between the riverside toe of the levee embankment ['the bottom of the slope of a levee embankment, where the embankment meets the original ground'] and the beginning of the pit is not excluded from the levee design." The City's expert explained that the flat portion of the property running down to the river was a "seepage berm where the natural material is left in place to provide a barrier to seepage under the levee embankment." The expert further noted that "[t]he geometric footprint of the total levee structure would extend from some distance landward of the actual landside toe of the levee embankment (the landside berm) to the beginning of the borrow pit." The expert concluded that "[t]he berm is a necessary and vital portion of the structure and without it the levee could not perform its intended purpose."

According to the definition provided by the City's expert, a "berm" is "a nearly horizontal step in the sloping profile of an embankment dam, or a step in a rock or earth cut. In levee design and construction a berm is a nearly horizontal expanse of soil material at either the riverside or landside toe of the levee embankment used to extend the path of underseepage. A natural berm is constructed by leaving a horizontal width from the toe of the levee embankment to the area where excavation of borrow materials is permitted. Berms may be constructed by placing embankment material at the toe of the levee embankment either to increase the stability of the embankment slope or to lengthen the path of underseepage through the levee foundation."

The Brutons subsequently filed a memorandum in opposition to the City's summary judgment motion, claiming that the City's factual statement was defective under Rule 141, in that it failed to set forth paragraph by paragraph the facts from the easement instrument and the expert's report in the brief's statement of uncontroverted facts. In addition, the Brutons provided a statement of 18 allegedly controverted facts. The essence of the Brutons' response was that the dike as it presently stood was much larger than the original dike and that the improvements added structures to the levee not present in 1935, such as the toe drain and the riprap. Thus, according to the Brutons, the recent improvements by the City exceeded the scope of the easement, resulting in an unlawful taking.

The City responded to the Brutons' memorandum by providing an amended statement of uncontroverted facts that set forth in separate paragraphs all of the City's original statements, as well as the statements from the easement and the expert's report (which were attached to the original factual statement). The City also filed a response to the Brutons' statement of controverted facts, claiming that the facts put forth were either not controverted or not material to the resolution of the claims in this case.

Having received this motion, the Brutons filed a memorandum in opposition to the City's amended statement of uncontroverted facts, claiming that a number of the facts stated by the City were controverted, according to the Brutons' understanding of the easement. The Brutons did not provide any additions to its previous list of controverted facts, other than asserting that a number of the facts stated by the City were in question.

In particular, the Brutons contested the statement by the City's expert that "Typical Section No. 3" provided the most accurate blueprint for the 1935 levee on their property. The Brutons noted that the land depicted in the diagram for Typical Section No. 3 included railroad tracks, which were not located on their property, and Station 188, which was located on the other side of the highway from the Brutons' property. Thus, the Brutons claimed that Typical Section No. 3 could not accurately describe the levee as it existed on their property.

The Brutons also contested the fact that the berm should be considered part of the levee structure because "[t]he 1935 Easement did not expressly grant to the [City] an easement for a seepage berm." The Brutons asserted that a berm is a separate structure from a dike, although they also "[did] not controvert that removal of a berm may damage a levee."

The City responded to Brutons' second memorandum in opposition. Attached to its response, the City provided a supplemental report by its engineering expert, which explained why Typical Section No. 3 provided the most accurate depiction of the levee on the Brutons' property. The expert explained that the USACE's construction plan consisted of five "Typical Sections" that showed different possible constructions of dike sections. He stated that the "Typical Sections" were not meant to correspond exactly with any particular area of property, but instead were used as blueprints for several different segments of the levee system. According to the expert, the placement of the borrow pit far away from the levee embankment on the Brutons' property indicates that the USACE used Typical Section No. 3 to design that portion of the levee. In addition, the expert reiterated that the berm "is an integral part of the embankment or the cut cross sectional area" of the levee used to reduce seepage. (Emphasis added.) "Since the seepage berm on the Bruton property was an integral part of the levee, it was a part of the footprint of the levee constructed in accordance with the 1935 plans which were examined and approved by the signers of the easement."

A hearing on the City's summary judgment motion was held on October 6, 2004. The court did not rule from the bench but, instead, found that its remaining questions were "issues of law, and not fact." The court therefore stated that it would take the issue under advisement and issue a written opinion. However, before the proceedings concluded, the court asked that the parties stipulate to how much additional height and length the 2000-2001 improvements added to the original levee. The court noted that "the engineers could probably [issue such a report] pretty easily."

Following the hearing, the City requested an additional report from its expert with the specifications requested by the court, as well as scale drawings of the levee structure. The expert provided the City with the supplemental report, concluding that the crest of the current levee structure was 11 feet higher than the 1935 levee structure and that the actual geographic area consisting of both the levee embankment and the seepage berm covered by both the original and improved levee structures was 2.706 acres. To arrive at this figure, the expert explained that the 1935 levee embankment covered .872 acres, while the seepage berm covered 1.834 acres, encompassing a total area of 2.706 acres. The improved levee embankment covers 1.786 acres (an addition of .914 acres), while the seepage berm covers .920 acres (a reduction of .914 acres), for a total of 2.706 acres.

In late November 2004, the City filed a motion for leave to file an additional statement of uncontroverted facts, which consisted of the most recent report of the City's expert. According to the City's motion, the City had provided the Brutons with a copy of the report over a month earlier and had not received any response. After conducting a hearing, the court ruled that the City should be allowed to file its additional factual statement.

In response, the Brutons filed a memorandum in opposition to the City's most recent statement of uncontested facts. The Brutons did not contest the fact that the crest of the current levee was 11 feet higher than the crest of the levee from 1935. Neither did the Brutons contest the expert's figures concerning the area covered by the 1935 and current levee embankments (.872 acres in 1935, compared with 1.786 acres in 2000). Rather, the crux of the Brutons' argument concerning the expert's report was that the report included the area covered by the seepage berm in its calculation of the area covered by the levee structure. The Brutons argued that the berm did not constitute part of the levee; they claimed that a berm is a separate structure from a dike and that the 1935 easement ...

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