Sewell and Lawson

                          NOT DESIGNATED FOR PUBLICATION

                                            No. 122,047


                             DARLENE SEWELL and JERRY SEWELL,


                            KENNETH LAWSON and KAREN LAWSON,

                                      MEMORANDUM OPINION

       Appeal from Cherokee District Court; KURTIS I. LOY, judge. Opinion filed February 5, 2021.

       Steve A. Stockard, of Wilbert & Towner, P.A., of Pittsburg, for appellants.

       No brief filed by appellees.


       PER CURIAM: This case involves a dispute between neighboring landowners over
the use of a private roadway located on or adjacent to real property that they own in rural
Cherokee County. Darlene and Jerry Sewell brought this action against Kenneth and
Karen Lawson to quiet title and requesting injunctive relief. Following a bench trial, the
district court found that the Sewells and other interested landowners have the right to use
the private roadway for accessing their respective properties. The district court also found
that the Sewells use of the private roadway was appropriate. On appeal, the Lawsons'
contend that the district court erred in reaching its decision. Based on our review of the
record, we find no error. Thus, we affirm.


       The Sewells and Lawsons collectively own four adjacent tracts of land in rural
Cherokee County. While the Sewells own the northern and southern tracts, the Lawsons
own two tracts in between them. In addition, there is another small tract in between the
Sewell and Lawson properties owned by Debra Clark. However, she is not a party to this
lawsuit. For many years, the Sewells and Lawsons have shared a 20-foot gravel private
roadway along the westernmost boundary of each of their tracts that connects their
properties to a county road.

       Prior to 1915, the property now owned by the Sewells and Lawsons was all owned
by the Cooper family as part of a single 80-acre tract. On August 7, 1915, the Coopers
divided the property into multiple smaller tracts and deeded it to their children. In doing
so, the Coopers provided an exception for a 20-foot private roadway located on the west
side of the real property to allow for access to the county road located to the south. For
more than 100 years, as the property was transferred and further subdivided, the
landowners continued to pass an exception or easement for the private roadway to
subsequent owners.

       In 1989, the Lawsons purchased one of the two tracts that they currently own that
was originally part of the Cooper property. About two and a half years later, the Lawsons
purchased another tract of land that was originally part of the original 80 acres. In 1994,
the Sewells entered into a "contract for deed" for the tract of land directly to the north of
the Lawsons' property, which was also originally part of the Cooper property. On this
land, the Sewells built their residence and operated a small-scale cow-calf operation.
Later, in 2015, the Sewells also purchased the tract of land directly to the south of the
Lawsons' property.

       Although Cherokee County does not maintain the private roadway, it has
designated the gravel road as "Southeast 62nd Drive, Galena, Kansas" for emergency
purposes. It is undisputed that the Sewells, Lawsons, and Clark would be "landlocked"
except for the private roadway located on the west side of their respective properties. For
several years, it appears that the parties lived peacefully as neighbors and shared the
private roadway without incident.

       In 2014, after Jerry Sewell lost his job, he started operating a gravel hauling
business from his home. The sole proprietorship—known as "JDS Trucking"—owns a
dump truck, a semi-truck, and several other pieces of equipment. The record reflects that
Sewell is the only operator of the trucks and equipment. According to Jerry Sewell, he
typically leaves with a truck on weekday mornings and does not return home until the
evening. It is undisputed that Sewell also operates a tractor to transport hay on the private

       According to the Lawsons, Jerry Sewell drives trucks on the private roadway—
which is only about 15 feet away from their residence—four or five times a day on
weekdays. Likewise, they assert that he also does so on some Saturdays. Because
Kenneth Lawson believed the Sewells were using the private roadway in an unreasonable
manner, he began confronting them about the situation. At various times, he blocked the
private roadway with his truck. In addition, he confronted guests who had been invited to
the Sewells' residence for allegedly driving too fast. These actions led to the Sewells
calling for the assistance of the Cherokee County Sheriff's Department on several

       On May 16, 2018, the Sewells filed this suit in the Cherokee County District
Court, seeking to quiet title to allow them to continue to use the private roadway in an
unrestricted manner. In addition, the Sewells asked for injunctive relief. The next day, the
district court entered a temporary restraining order in favor of the Sewells. Following a

hearing, the district court allowed the temporary restraining order to remain in place until
a trial could be held. However, it placed certain limitations on the use of the private
roadway during the pendency of this action.

       On August 9, 2019, the district court held a one-day bench trial. At trial, Jerry
Sewell, Kenneth Lawson, and Karen Lawson testified. In addition, several exhibits were
admitted into evidence, including an "Owners and Encumbrances Report" prepared by
First American Title Insurance Company and an aerial photo of the properties in
question. Significantly, the Lawsons stipulated on the record that "we do not contest that
there is a perpetual easement for roadway purposes" which had not been abandoned. At
the conclusion of the bench trial, the district court took the case under advisement and
kept the temporary restraining order in place until a final decision could be entered.

       On September 10, 2019, the district court issued a Memorandum Decision and
Order in which it granted judgment in favor of the Sewells. In its order, the district court
discussed the history of the real property, the creation of the private roadway, and the
events surrounding the dispute between the parties. After doing so, the district court
discussed the relevant law relating to the interpretation of deeds and, in particular,
exceptions. Finally, the district court concluded that in 1915, the Cooper family divided
and transferred the 80 acres they originally owned into smaller tracts. In doing so, they
created—by exception—a private roadway that ran along the western boundary of the
original property.

       Specifically, the district court found:

       "This is a private roadway solely for the use of the various tracts of real estate that abut
       the same. This Court views the roadway as a separate servient estate. Each privately
       owned tract of land that abuts the roadway is viewed as the dominant estate to this
       roadway and correspondingly is obligated to assist in maintaining the roadway. It cannot
       be encumbered in any way by any of the adjoining landowners and each landowner is

       free to use the roadway at their pleasure without restriction from other landowners. It is
       free to be used by these landowners the same as if it were a public roadway. The owners
       and their guests may use the same for accessing the property . . . .

               "With regard to the complaint by Mr. Lawson that the use of farm implements[,]
       a dump truck, and semi-tractor and trailer are unreasonable, the Court considers this from
       an objective view, rather than the narrow and subjective view of the Defendant. If
       damage is being done to the roadway which is not easily repaired, then this Court might
       view the complaint as appropriate. There is no evidence that is occurring, at least not
       occasioned by the Sewell[s]. The use of the dump truck, semi-tractor and trailer, and
       various farm implements is an appropriate use of this roadway considering the rural
       setting and location."


       At the outset, we note that the Lawsons cite the standard of review for injunctive
relief in their brief. Yet, there is no mention of an injunction being granted in the district
court's Memorandum and Order. Instead, a review of the record indicates that the district
court entered a final judgment on the quiet title claim brought by the Sewells.

       Here, the Sewells filed a petition to quiet title and seeking injunctive relief. K.S.A.
60-1002(a) permits "any person claiming title or interest in . . . real property [to bring a
legal action] against any person who claims an estate or interest therein adverse to him or
her, for the purpose of determining such adverse claim." To prevail at trial on their claim
to quiet title, the Sewells had the burden of proof based on the strength of their own title.
See Bucklin National Bank v. Hayse Ranch, 

58 Kan. App. 2d 715

, 721, 

475 P.3d 1

(2020); Ford v. Willits, 

9 Kan. App. 2d 735

, 745, 

688 P.2d 1230

(1984), aff'd 

237 Kan. 13


697 P.2d 834


       On appeal, the Lawsons contend that the district court ignored the evidence
presented at trial in ruling in favor of the Sewells. They also suggest that we should find

that the Sewells can only use the private roadway for "ingress and egress by small
vehicles for private residential purposes only." However, our role is not to substitute our
judgment for that of the district court. Rather, our role is to review the district court's
findings of fact and conclusions of law to determine whether the factual findings were
supported by substantial competent evidence and whether they are sufficient to support
the legal conclusions. See Gannon v. State, 

305 Kan. 850

, 881, 

390 P.3d 461

Brown v. ConocoPhillips Pipeline Co., 

47 Kan. App. 2d 26

, 36, 

271 P.3d 1269


       In reviewing the record on appeal, we are not to reweigh the evidence or make
independent credibility findings. In other words, we must defer to the district court's
assessment of conflicting evidence. 

Gannon, 305 Kan. at 881

. Moreover, we are required
to review the evidence presented at trial in the light most favorable to the prevailing
party—in this case the Sewells. See Unruh v. Purina Mills, LLC, 

289 Kan. 1185

, 1195,

221 P.3d 1130

(2009). Nevertheless, we exercise unlimited review in determining if that
evidence warrants the ultimate legal conclusions. 

Gannon, 305 Kan. at 881


       As a general rule, our interpretation of deeds and other written documents is
unlimited. See Prairie Land Elec. Co-op v. Kansas Elec. Power Co-op, 

299 Kan. 360


323 P.3d 1270

(2014); Stroda v. Joice Holdings, 

288 Kan. 718

, 720, 

207 P.3d 223

(2009). However, the parties do not dispute that the Sewells have a right to use the
disputed property located on the west side of their respective properties for "roadway
purposes" and that they have not abandoned this right. Instead, the Lawsons argue that
the operation of large trucks and farm equipment on the shared roadway by the Sewells is

       Viewing the evidence presented at trial in the light most favorable to the Sewells,
we find that the district court's conclusion regarding the "appropriate use" of the private
roadway is supported by substantial competent evidence. A review of the record reveals
that the 20-foot roadway that ran along the western boundary of the real property owned

by the Coopers was created by an exception in 1915 when the property was initially
subdivided into separate tracts. The evidence shows that the roadway exception—
sometimes referred to as an easement—passed to subsequent owners. For example, the
general warranty deed passing legal title to the Sewells in 2001 expressly states that the
land is subject to "a perpetual easement for roadway purposes located on the West side"
of the property.

       A review of the record also shows that there was evidence presented at trial to
support the district court's finding that "the private roadway serves all land abutting the
road and is the sole means of ingress and egress to the properties abutting the roadway."
The evidence also reveals that the Lawsons were "on notice" regarding the existence of
the private roadway. In fact, they agreed at trial that Sewell "still has a perpetual
easement for roadway purposes and he hasn't abandoned that." Furthermore, there is
evidence in the record to support the district court's finding that "the West twenty (20)
feet can be used for nothing but a roadway."

       There is also substantial competent evidence in the record to show that the real
property in question—including the private roadway—is located in a rural part of
Cherokee County as found by the district court. This is confirmed by the testimony
presented at trial as well as by the aerial photograph taken of the real property in question
that was admitted into evidence. Of course, a district court sitting in Cherokee County is
much more likely to know the "setting and location" than an appellate court sitting in

       Turning to the question of whether the district court's factual findings are
sufficient to support the legal conclusions, we look to the language used in the 1915 deed
originally creating the private roadway as well as the other documents in the record. See
Amoco Production Co. v. Wilson, Inc., 

266 Kan. 1084

, 1088, 

976 P.2d 941

(1999); In re
Marriage of Wade, 

20 Kan. App. 2d 159

, 162, 

884 P.2d 736

(1994). "[T]here is little, if

any, need to give much weight to circumstantial evidence of their intent." 

Stroda, 288 Kan. at 721

. "The expressed terms of the grant or reservation are controlling." Aladdin
Petroleum Corp. v. Gold Crown Properties, Inc., 

221 Kan. 579

, 584-85, 

561 P.2d 818


       The Lawsons contend that the district court erred by not considering the historical
use of the roadway. However, the language creating the private roadway—as well as the
language passing the right to use the roadway to the Sewells—is plain, simple, and
concise language. This plain and unambiguous language support's the district court's
conclusion that the Sewells have the right to use private roadway in an appropriate
manner. We note that a private road is defined in K.S.A. 8-1451 as "every way or place in
private ownership and used for vehicular travel by the owner or those having express or
implied permission from the owner, but not other persons." See Schallenberger v. Rudd,

244 Kan. 230

, 234, 

767 P.2d 841

(1989) (A roadway is "used for vehicular travel.").

       In other words, the private roadway was created to be used for vehicular travel by
the adjoining property owners and by those to whom they give permission to use the
road. As the parties recognize, if the private roadway did not exist, they would be
"landlocked" as would the other adjoining landowner. Based on the evidence, we do not
find that the district court erred in finding that the adjoining landowners have the right to
use the private roadway without interference from the other landowners.

       We note that the Lawsons did not offer any evidence that the current use of the
private roadway by the Sewells violated any zoning laws or land use restrictions.
Likewise, they did not introduce any evidence that the Sewells' use of the roadway
diminished the value or marketability of their property. Thus, based on the evidence in
the record supporting the district court's finding regarding "the rural setting and location"
of the private roadway, we do not find that it was unreasonable or erroneous as a matter

of law for the district court to conclude that "[t]he use of the dump truck, semi-tractor and
trailer, and various farm implements is an appropriate use of this roadway . . . ."

       Finally, we note that the district court recognized in its Memorandum and Order
that circumstances could potentially arise in which the Lawsons might be able to seek
legal recourse in the future "[i]f damage is being done to the roadway which is not easily
repaired." However, at this point, the district court found that the evidence did not
support that the Sewells were causing such damage by their use of the private roadway.
Also, although we affirm the district court's conclusion that the landowners—as well as
their invited guests—are permitted to use the private roadway for accessing their
respective property without interference, we take no position on what acts may or may
not constitute "a criminal trespass." Rather, that would be dependent on the particular
facts and circumstances presented. We are hopeful that the parties will be good neighbors
and that there will be no need for the parties to seek court intervention again in the future.



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