from McPherson District Court; Marilyn M. Wilder, judge.
Patrick B. Hughes, of Adams Jones Law Firm, P.A., of Wichita,
R. Law, of Wise & Reber, L.C., of McPherson, and Michael
T. Mills, of Michael T. Mills, Chartered, of McPherson, for
D. Holdren and Wendee D. Grady, of Kansas Farm Bureau, of
Manhattan, and Aaron Popelka and Tucker Stewart, of Kansas
Livestock Association, of Topeka, amici curiae.
Green, P.J., Schroeder, J., and Stutzman, S.J.
trail created under the National Trails System Act (Trails
Act), 16 U.S.C. § 1247(d) (2012) cannot be adversely
possessed. Nor can portions of the trail be obtained by
prescriptive easement. These trails exist for public use.
Thus, K.S.A. 60-509 exempts Trails Act trails from the
application of adverse possession and prescriptive easement
statute of limitations. 2.
determining if the party responsible for a Trails Act trail
must comply with K.S.A. 58-3213 of the Kansas Recreational
Trails Act (KRTA), subsection (d) requires consideration of
the date the appropriate federal agency originally approved
the railroad and potential responsible party for interim
trail use. If the appropriate federal agency approved the
railroad and potential responsible party for interim trail
use before the KRTA's effective date, the current
responsible party has no obligation to comply with the
requirements under K.S.A. 58-3213.
Under the plain language of K.S.A. 58-3213(d), it is
irrelevant whether the party the appropriate federal agency
originally approved to negotiate for interim trail use is the
same as the current responsible party maintaining the trail.
K.S.A. 2018 Supp. 58-3215 establishes that when a responsible
party violates the KRTA, enforcement of the KRTA is the only
available remedy for an aggrieved party.
party responsible for the trail and the adjacent property
owner will split the costs of fencing as stated under K.S.A.
58-3212(a)(10)(D) only when the adjacent property owner does
not have the remaining sides of his or her property fenced as
stated under K.S.A. 58-3212(a)(10)(C).
Deterioration of a fence does not necessarily exempt the
party responsible for the trail from K.S.A.
58-3212(a)(10)(A)'s requirement to maintain fencing
already in place along the railroad corridor. The key is if
the fence still "exists" and can therefore be
plain language of K.S.A. 58-3212(a)(10) underscores that
fencing constructed on a trail created under the Trails Act
must be constructed on the partition line.
Because the party responsible for a trail has a statutory
duty to construct fencing along the trail, the responsible
party has the privilege to enter the adjacent landowner's
property when constructing partition fencing.
in part, reversed in part, and remanded with directions.
case involves a .75-mile stretch of railroad corridor which
runs on Clinton L. Sides and Kimbra D. Sides' property in
McPherson County, Kansas. The railroad corridor at issue,
along with the railroad corridor running north and south of
it, have been converted to a trail use easement under the
National Trails System Act (Trails Act), 16 U.S.C. §
1247(d) (2012). The Central Kansas Conservancy, Inc.
(Conservancy) owns the trail use easement. As a result of
this easement, it intends to develop the railroad corridor
into a public trail named the "Meadowlark Trail."
the Sides unsuccessfully challenged the Conservancy's
ownership of the trail use easement. The Sides now appeal the
trial court's rulings against them, arguing that the
trial court's decision to grant the Conservancy's
request for quiet title was erroneous for two reasons. First,
they argue that they obtained rights over the railroad
corridor to the exclusion of the Conservancy through adverse
possession or prescriptive easement. Second, they argue that
the Conservancy's right to develop the trail no longer
exists because the Conservancy violated K.S.A. 58-3213(c) of
the Kansas Recreational Trails Act (KRTA). Finally, the Sides
argue that the trial court's decision to grant the
Conservancy's injunction, which contained rulings about
fencing, was erroneous because it contravened the plain
language of K.S.A. 58-3212(a)(10).
determine the Sides' arguments-that they obtained rights
over the railroad corridor through either adverse possession
or prescriptive easement and that the Conservancy's lack
of compliance with K.S.A. 58-3213(c) caused it to lose the
right to develop the trail-are unpersuasive. Nevertheless, we
determine the Sides' arguments about fencing have merit.
In short, we conclude that the Conservancy owns the trail use
easement and has the right to develop the rail corridor into
a trail. But under the facts of this case, we conclude that
the trial court did not follow the plain language of K.S.A.
58-3212(a)(10) when it made its fence rulings. As a result,
we affirm in part, reverse in part, and remand with
directions consistent with this opinion.
April 16, 1997, in accordance with the Trails Act, Union
Pacific and the Conservancy entered into a line donation
contract, where Union Pacific gave the Conservancy a
"Donative Quitclaim Deed" to its easement rights
over 12.6 miles of railroad corridor in McPherson County. As
a result, absent future railbanking, the Conservancy obtained
the exclusive right to develop the railroad corridor for
recreational trail use. About .75 miles of this railroad ran
through the Sides' land; the railroad corridor was about
66 feet wide.
September 10, 2015, the Conservancy petitioned the McPherson
County District Court for quiet title and an injunction
concerning its trail use easement on the Sides' land.
petition, the Conservancy alleged that after it obtained the
trail use easement, the Sides "actively and unlawfully
interfered with [its] lawful attempts . . . to exercise [its]
rights to use and further develop, and to perform its duties
with respect to the use and further development of, the
Corridor as a recreational trail." Additionally, the
Conservancy asserted that the Sides had blocked its access to
the railroad corridor with fencing and "machinery and
equipment," with no intention of stopping.
Sides responded, agreeing that they had blocked the railroad
corridor with fencing. They also agreed that they had placed
equipment and machinery in the railroad corridor that
prevented the Conservancy from entering it. But the Sides
asserted that their interference with the Conservancy's
right to enter the railroad corridor constituted adverse
possession of the Conservancy's ownership of the
corridor. Alternatively, they argued that they had obtained a
prescriptive easement over the railroad corridor. Moreover,
the Sides asserted that the Conservancy's
"opportunity to develop and use the railroad right of
way for a recreational trail had to be exercised, if at all,
within two years of the expiration of the appeal period . . .
." The Sides believed that the Conservancy violated
K.S.A. 58-3213(c) of the KRTA's two-year period to
develop a trail. As a result, the Sides requested that the
trial court not only deny the Conservancy's petition but
also grant their counterclaims for quiet title, declaratory
judgment, and injunction.
trial court held a case management conference on March 21,
2016. After this conference, the parties filed multiple
competing summary judgment motions. Those competing motions
can be summarized as follows:
Sides argued that they were entitled to summary judgment
against the Conservancy, and in favor of their counterclaims,
for the same reasons they listed in their response-they
adversely possessed the railroad corridor, they obtained a
prescriptive easement over the railroad corridor, and the
Conservancy violated K.S.A. 58-3213(c).
their adverse possession and prescriptive easement arguments,
the Sides stressed that in addition to the fencing,
machinery, and equipment, since the mid-1990s they had
farmed, grazed cattle, and hunted on the railroad corridor.
Then, the Sides cited federal law holding that recreational
trail use does not fall within the original scope of a
railroad easement. Thus, the Sides asserted the trail use
easement constituted a new easement that they could obtain
rights over by adverse possession or prescriptive easement.
their argument that the Conservancy violated K.S.A.
58-3213(c)'s two-year time limit, the Sides alleged that
these facts were uncontroverted: (1) that the Conservancy had
begun planning the construction of the trail on October 14,
1997; (2) that the Conservancy had not physically developed
the trail within two years "following the time to appeal
from the [Conservancy's] acquisition of the right to
develop [the] recreational trail"; (3) that the
Conservancy first contacted them about physically developing
the trail on the railroad corridor running through their land
in August 2013; and (4) that the Conservancy had still not
physically developed the trail on the railroad corridor
running through their land.
under K.S.A. 58-3212(a)(9) of the KRTA, the Sides argued that
they had "crossing and use rights [over the railroad
corridor] even if the [Conservancy was] otherwise empowered
to construct a trail and [they had] neither adverse
possession nor a prescriptive easement."
motion, the Conservancy argued that the trial court should
grant summary judgment in its favor on the issues of quiet
title and injunction because the uncontroverted facts
established that it had an easement over the railroad
corridor. The Conservancy also argued that the Sides'
arguments were flawed based on the following: (1) because the
"public use" exception under K.S.A. 60-509
prevented the Sides from acquiring additional rights over the
railroad corridor through adverse possession or prescriptive
easement; (2) because K.S.A. 58-3213(c)'s two-year time
limit did not apply given the plain language of K.S.A.
58-3213(d) and the facts of the case; and (3) because the
Sides sought a remedy that was unavailable under the KRTA
given the plain language of K.S.A. 2016 Supp. 58-3215.
K.S.A. 58-3213(c)'s two-year time limit, the Conservancy
pointed out that the Interstate Commerce Commission (ICC)
served its first Notice of Interim Trail Use (NITU) on
September 28, 1995, when Union Pacific and the City of
Lindsborg, Kansas, entered into negotiations. Meanwhile,
K.S.A. 58-3213 went into effect on July 1, 1996. Thus, the
Conservancy argued that it was exempt from complying with
K.S.A. 58-3213(c) because the ICC approved NITU negotiations
before the KRTA went into effect. See K.S.A. 58-3213(d).
October 12, 2016, the trial court denied the Sides'
motion for summary judgment. It granted the Conservancy's
motion in part. In its order, the trial court made the
following factual findings:
". The Union Pacific Railroad acquired a railroad
right of way over the Subject
Property in the late 1800s. The parties do not agree as to
whether the right of way was acquired by condemnation or
purchase but have not made the manner of acquisition an issue
in their motion for summary judgment.
". On June 5, 1995, Union Pacific sought an exemption
from the [ICC] to abandon
12.6 miles of rail line between milepost 518.0 and 530.6 near
Lindsborg, all in McPherson County. A portion of that rail
line traverses the Subject Property. Union Pacific certified
at that time that no local traffic had moved [on] the line
for at least two years. (The [ICC's] functions has been
transferred to the successor body, the [STB].)
". The railroad right-of-way/trail corridor is 66
feet in width and runs generally north and south.
". On August 18, 1995, the City of Lindsborg, Kansas
requested that a [NITU] be
issued for the subject rail line under the National Trails
System Act, 16 U.S.C. 1247(d).
". On September 20, 1995, the [ICC] issued a Decision
and Notice of Interim Trail
Use or Abandonment allowing for negotiation of an interim
trail use/rail banking agreement.
". On March 25, 1997, the STB issued a Decision that
recited various extensions of
the trail use condition and the various parties that
participated in obtaining those extensions, ultimately ending
with the Plaintiff, Central Kansas Conservancy, Inc., and
granted Plaintiff's request to extend the interim trail
use negotiation period to April 20, 1997, thereby allowing
Plaintiff to continue to negotiate a trail use/rail banking
agreement with UP.
". On April 16, 1997, Plaintiff reached an agreement
with Union Pacific for use of
rights-of-way, including the right-of-way over the Subject
Property, for trail purposes. This agreement was embodied in
a Line Donation Contract meeting the conditions of 16 U.S.C.
1247(d). The Line Donation Contract provided in part 'In
the event reactivation of rail service upon the Property is
necessary, Donee agrees to transfer the Property back to UP
by executing a quit claim deed in recordable form.'
". On April 16, 1997, Union Pacific Railroad provided
Plaintiff with a Donative
Quit Claim Deed to, inter alia, the right-of-way
over the Subject Property, subject to the April 16, 1997 Line
Donation Contract and the terms and conditions of the ICC
Decision and Notice of Interim Trail Use in Docket AB-33. On
May 30, 1997, Union Pacific Railroad provided Plaintiff with
a Correction Donative Quit Claim Deed to, inter
alia, the right-of-way over the Subject Property,
subject to the April 16, 1997 Line Donation Contract and the
terms and conditions of the ICC Decision and Notice of
Interim Trail Use in Docket AB-33.
". The Defendants obtained a portion of the Subject
Property by warranty deed dated December 17, 1994 and leased
the grass portion adjoining the then unused railroad
right-of-way running through that quarter section. At that
time there was no current railroad-related activity evident
on the right of way. (No written lease was provided to the
Court so the Court makes no determination regarding the
validity or terms of that lease.)
". Defendants acquired additional property adjoining
on both sides the right-of-way by warranty deed dated
December 17, 1997, and on August 24, 2000 acquired additional
property also subject to the right-of-way.
". By warranty deed dated July 2, 2001, Defendants
acquired the remainder of the property in the southeast
quarter of Section 29, Township 18 South, Range 3 West of the
Sixth P.M. that they had not acquired in the previous
". Since the mid-1990s, access to the Subject
Property from Pawnee Road on the south, and from the north,
has been fenced off by [the Sides]. In addition, [the Sides]
erected 'no trespassing' signs on the fence blocking
access to the Subject Property and have parked farm equipment
on the Subject Property to further block access from Pawnee
". The [KRTA], K.S.A. 58-3211 et seq. was
passed into law by the Kansas legislature and was effective
as of July 1, 1996."
on the preceding facts, the trial court rejected each of the
Sides' arguments. First, the trial court rejected the
Sides' arguments that they could obtain rights over the
railroad corridor to the exclusion of the Conservancy through
adverse possession or prescriptive easement. The trial court
held that under K.S.A. 60-509, Kansas law prevented the
taking of lands held for public use. The trial court ruled
that railbanking easements and trail use easements
constituted easements for public use based on the United
States Supreme Court decision in Preseault v.
I.C.C., 494 U.S. 1, 19, 110 S.Ct. 914, 108 L.Ed.2d 1
(1990). Second, the trial court ruled that K.S.A. 58-3213 of
the KRTA, including K.S.A. 58-3213(c)'s two-year time
limit on trail development did not apply. The trial court
noted that K.S.A. 58-3213(d) stated that the section applied
only to "recreational trails for which approval to enter
into negotiations for interim trail use [was] received from
the appropriate federal agency on or after the effective date
of [the] act." Yet, the ICC approved the Union
Pacific's and Lindsborg's negotiations for NITU on
September 20, 1995, before K.S.A. 58-3213's enactment on
July 1, 1996.
the trial court determined that the Sides' argument about
whether they had a right to use the railroad corridor under
K.S.A. 58-3212(a)(9) was not properly before the court. The
trial court found that because the parties had not
"elucidated the rights of [the] landowners in respect to
a trail easement," the court would not make
"findings on that issue." The trial court would
later speculate that "there would seem to be no reason
why the [Sides] couldn't . . . [continue] to store
machinery on the [railroad corridor] until the time that [the
Conservancy was] ready to begin work on the [corridor]."
Yet, the trial court barred the Sides from excluding the
Conservancy by posting no trespassing signs, fencing, or in
any other way, as it started to develop the trail.
10, 2017, upon the request of the parties, the trial court
clarified its summary judgment order. The trial court stated
that it denied the Sides' motion for summary judgment in
all respects. Next, the trial court stated that although it
granted the Conservancy's summary judgment motion on
quiet title, it denied the Conservancy's summary judgment
motion on the injunction.
entering this order, the parties filed several motions
debating whether the Sides had a right to access the
corridor. The Conservancy also alleged that the Sides (1)
were seeking to relitigate issues that the trial court had
already decided against them and (2) were actively