Gilman v. Blocks

No. 102,084

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JOHN O. GILMAN, et al.,
Appellants/Cross-appellees,

v.

GERARD BLOCKS, et al.,
Appellees/Cross-appellants.


SYLLABUS BY THE COURT

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

2.
Generally, if a written instrument has clear language and can be carried out as
written, rules of construction are not necessary. A court must examine all four corners of
a written instrument and analyze particular language in consideration of the entire
instrument and not with a critical analysis of a single or isolated provision.

3.
A written instrument is ambiguous when the application of rules of interpretation
to the whole fails to ascertain which one of two or more meanings is conveyed by the
parties' words.

1

4.
The question of whether a written instrument is ambiguous is a question of law
subject to de novo review.

5.
An easement is a permanent interest in real property and must be created by a
deed, by a prescription, or by a sufficient writing. On the other hand, a license is a
personal privilege to do some act or series of acts upon the land of another without
possessing any estate in the land. A license may be created by parol and is generally
revocable at the will of the owner of the land in which it is to be enjoyed, by the death of
the licensor, by conveyance of the lands to another, or by whatever would deprive the
licensee of doing the acts in question or giving permission to others to do them.

6.
The label given by parties to a right created (a license or a lease) does not dictate
its legal effect.

7.
There are five factors to consider in determining whether the parties' intent was to
create an easement or a license: (1) manner of creation of the right (oral or written); (2)
nature of the right created; (3) duration of the right; (4) amount of consideration, if any,
given for the right; and (5) reservation of power to revoke the right.

8.
Under the facts of this case, the neighboring landowners intended to create an
easement in a 15-foot tract of land surrounding a party pond, as set forth in a written
declaration filed of record.

2

9.
It is well settled that an owner of a servient tenement may use the land over which
an easement extends in any manner which does not unreasonably interfere with its use.

10.
Under the facts of this case, the servient tenants' use of the area of their property
subject to the easement unreasonably interfered with the dominant tenants' use of the
easement. As a result, the servient tenant is responsible for the cost of removing the
obstruction that unreasonably interferes with the dominant tenants' use of the easement.

Appeal from Johnson District Court; GERALD T. ELLIOTT, judge. Opinion filed July 9, 2010.
Affirmed in part, reversed in part, and remanded with directions.

Bruce W. Beye, of Overland Park, for appellants/cross-appellees.

Gerard Blocks and Sandra E. Ullah, appellees/cross-appellants pro se.

Before STANDRIDGE, P.J., GREEN and MARQUARDT, JJ.

GREEN, J.: In this declaratory judgment action, we must determine whether a
written declaration entered into between two adjoining landowners created an easement
or a license for a 15-foot tract of land adjacent to a party pond. The trial court determined
that based upon a specific paragraph in the declaration, the landowners intended to create
a license and not an easement. Alternatively, the trial court determined that even if an
easement had been created, the landscaping done by the servient tenement owners,
Gerard Blocks and Sandra Ullah, did not unreasonably obstruct the use of the easement
by the dominant tenement owners, John and Nancy Gilman. The trial court further
determined that an irrigation or sprinkler system on the 15-foot tract of land did not
unreasonably obstruct the easement and, thus, rejected Blocks and Ullah's request that the
Gilmans pay for the cost of removing the system.
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The Gilmans now appeal from the trial court's ruling that the declaration created a
license and not an easement and its ruling that the landscaping done by Blocks and Ullah
did not unreasonably obstruct the Gilmans' use of the property. We determine that the
plain and unambiguous language of the declaration demonstrates the previous
landowners' intent to create an easement over the 15-foot tract of land. Moreover, even if
the language in the declaration created an ambiguity as to whether the previous
landowners intended to create an easement or a license, we determine that the
surrounding circumstances show that the landowners intended to create an easement over
the tract in question. In addition, we hold that Blocks and Ullah's landscaping on the 15-
foot tract of land unreasonably obstructed the Gilmans' use of the easement. As a result,
we reverse the trial court's rulings that the declaration created a license and that Blocks
and Ullah were not required to remove the landscaping on the tract in question and we
remand for further consideration of the issue of removal of the obstruction created by
Blocks and Ullah.

In addition, Blocks and Ullah cross-appeal from the trial court's ruling rejecting
Blocks and Ullah's request that the Gilmans pay for the cost of removing the irrigation or
sprinkler system, which they allege encroaches on their property. Nevertheless, because
Blocks and Ullah failed to present any evidence to the trial court regarding the
encroachment of the sprinkler system on their property, we determine that the trial court
properly denied their request for a declaratory judgment on this issue. Although Blocks
and Ullah contend that their attorney and the Gilmans' attorney had an agreement to
litigate this issue separately from the other issues in this case, they never told the trial
court of this agreement before the trial occurred in this case. Such conduct amounted to
invited error, and Blocks and Ullah cannot now complain that the trial court failed to rule
on an issue that they never properly presented to the trial court and never preserved for
later consideration. As a result, we affirm the trial court's judgment on Blocks and Ullah's
counterclaim regarding the sprinkler system. Accordingly, we affirm in part, reverse in
part, and remand on the issue of removal of the obstruction created by Blocks and Ullah.
4

John and Margaret Nash owned contiguous lots 1, 2, 3, and 4 of certain residential
real estate in Johnson County, Kansas. A pond was located on part of lots 2, 3, and 4.
Based on the pond's location, part of lot 3's land was on the back side of the pond and
could be accessed by land by going around the pond, which meant going onto the
property of lot 2 or lot 4.

Apparently, in 1976, the Nashes began negotiating with J & J Development Co.,
Inc. (J & J Development) regarding the sale of the Nashes' property. On March 3, 1976,
the Nashes and J & J Development filed a declaration of record that reserved the benefits
and the obligations to maintain the pond on lots 2, 3, and 4 as follows:

"WHEREAS, said three lots have in common a pond and dam for which this
declaration is made in order to provide for the ownership and use of such pond and dam,
as well as the maintenance thereof;
"NOW, THEREFORE, in consideration of these premises, John E. Nash and
Margaret E. Nash, husband and wife, and J & J Development Co., Inc. for themselves
and for their heirs, executors, successors and assigns, and for their future grantees, hereby
declare that the above described real estate shall be and the same hereby is, subject to the
following declaration:
"1. Persons bound. All persons and corporations who now own or shall
hereafter acquire any interest in the property subject to this instrument shall be taken to
hold and agree and covenant with the owner of said lots, and with their successors and
assigns, to conform to and observe these covenants, restrictions and agreements as to the
use and maintenance of the pond and dam thereon. The benefits and obligations of this
instrument shall run with the land herein described so long as the pond and dam
continues to exist.
"2. Use of pond and dam. The pond and dam shall be a party pond and dam,
and the owners of each of the lots hereinabove described shall have the right to use the
same jointly with each of the other owners. None of the said owners may erect any dock,
platform or other structure, or deposit any organic or inorganic article or substance in or
upon the pond and/or dam without the consent of all of the other owners.
5

"3. Contribution to cost. In consideration of these premises, should it
become necessary or desirable, in the opinion of the owners of two or more of the
aforedescribed lots, to repair or rebuild the whole or any part of the [p]ond and dam, the
repairing or rebuilding expense shall be borne equally by the three lot owners. Any such
repairing or rebuilding of the pond and dam shall be on the same location and of the same
size as the original, and of the same or similar material of the same quality as that used in
the original.
"4. Easements. The owners of each of the lots hereinabove described hereby
grants to each of the other owners license to enter upon his or its property in order to gain
access to the pond and dam by the most direct route, and further grants license to enter
upon and use that portion of his or its property which is within fifteen (15) feet of the
water's edge."

The Nashes ultimately conveyed lots 1, 2, and 4 to J & J Development by
warranty deeds filed in June 1976, November 1977, and July 1976, respectively. The
Nashes conveyed lot 3 to Michael and Susan Gangel by warranty deed filed in April
1976. In August 1998, the Gangels conveyed lot 3 to the Gilmans by warranty deed.

Based on the limited appellate record before this court, it appears that J & J
Development later conveyed lot 2 to Leo and Carolyn Hovenkamp by warranty deed. The
Hovenkamps then conveyed lot 2 to William and Barbara Eidt in September 2001.
William Eidt later died, and Barbara Eidt conveyed lot 2 to Blocks and Ullah by warranty
deed filed of record in September 2005. The warranty between Eidt and Blocks and Ullah
clearly stated that it was "[s]ubject to easements, reservations, restrictions, and covenants,
if any, of record." The title report, which was provided to Blocks and Ullah before the
conveyance of lot 2, references the declaration filed March 3, 1976, between the Nashes
and J & J Development.

J & J Development conveyed lot 4 to Marlin and Marvel Constance by warranty
deed in August 1976. The Constances in turn conveyed lot 4 to Kenneth and Bonnie
Ellington by warranty deed in August 1979.
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Thus, the chain of title for Lots 2, 3, and 4 can be represented as follows:

Lot 2:
Nashes Æ J & J Development Æ Hovenkamps Æ Eidts Æ Blocks and Ullah

Lot 3:
Nashes Æ Gangels Æ Gilmans

Lot 4:
Nashes Æ J & J Development Æ Constances Æ Ellingtons

After Blocks and Ullah bought lot 2, the situation between them and the Gilmans
quickly became unpleasant. In September 2007, Blocks and Ullah constructed a berm and
did landscaping work to establish a boundary between lot 2 and lot 3. The berm and
landscaping work was within the 15-foot area surrounding the party pond. In November
2007, Blocks and Ullah sent the Gilmans a cease and desist letter. Within the letter,
Blocks and Ullah told the Gilmans that they had no right to cross Blocks and Ullah's
property and that Blocks and Ullah would call the police if they persisted in traveling
across the property. Shortly after the Gilmans received the cease and desist letter, Blocks
and Ullah put up "No Trespassing" signs pointing directly at the Gilmans' property.

In a certified letter sent in December 2007, the Gilmans' attorney sent Blocks and
Ullah the March 1976 declaration filed of record and told them that the Gilmans had the
right to use the property that was within 15 feet from the edge of the pond. The Gilmans'
attorney further stated that Blocks and Ullah were in violation of the declaration by
planting shrubs and bushes to prevent the Gilmans' use of the easement and requested
that they remove the landscaping within 30 days. Blocks and Ullah responded with an 11-
page letter in which they conceded that the declaration allowed for a 15-foot easement
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around the pond. In April 2008, the Gilmans sent another letter to Blocks and Ullah
requesting removal of the landscaping within the easement surrounding the pond.

In June 2008, the Gilmans filed a declaratory judgment action against Blocks and
Ullah. The Gilmans asked that the trial court issue a declaratory judgment finding the
existence of an easement; ordering Blocks and Ullah to remove the obstruction to the
Gilmans' access; and making any further orders, including costs and attorney fees, as
were just and equitable.

Blocks and Ullah filed counterclaims against the Gilmans. Blocks and Ullah asked
the trial court for a declaratory judgment that the right to gain access contained in
paragraph 4 of the declaration was a license that did not run with the land. Alternatively,
Blocks and Ullah asked the trial court to find that if paragraph 4 was intended to create an
easement, then the description of the easement was so vague or undefined as to be
unenforceable. Blocks and Ullah further argued that if the trial court determined that an
easement existed, then the Gilmans should be required to remove obstructions placed
within the easement, which would include a dock and any irrigation-related devices. For
their second counterclaim, Blocks and Ullah asked for a judgment against the Gilmans
for the cost of the removal of an in-ground sprinkler system on Blocks and Ullah's
property and the restoration of their property.

The case proceeded to a bench trial without a case management or pretrial
conference. At trial, Ullah acknowledged that the berm and landscaping work were
within 15 feet of the water's edge. According to Ullah, when the berm was put in, it was
approximately 6 inches from the water's edge. Nevertheless, when the trial occurred, the
berm was approximately 18 inches from the water's edge. Ullah testified that the berm
was approximately 22 inches high and that there were two trees planted in the berm area.
Although Ullah indicated that there were a 48-inch and 57-inch access areas within the
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berm, she conceded that John Gilman's larger mower could not get through the access
areas.

John Gilman testified that the berm and landscaping prevented him from passing
through the 15-foot easement with his mower. According to Gilman, Blocks and Ullah
had put up a sign that says "Mower across easement" on their property but that path was
approximately 25 to 30 feet from the water's edge.

The Gilmans presented testimony from Kenneth Ellington, the owner of lot 4.
Ellington testified that he had moved onto lot 4 in September 1979 with the
understanding that there was a 15-foot access easement around the perimeter of the pond
granted to the property owners of lots 2, 3, and 4. According to Ellington, he had never
consented to Blocks and Ullah's construction of the berm and landscaping work, and he
objected to the placement of the berm and landscaping within the 15-foot easement.

Ellington further testified that when he moved onto the property in 1979, there was
already a dock built on lot 3 and a couple of pumps that provided irrigation to lots 3 and
4. Consistent with Ellington's testimony, John Gilman testified that the dock, irrigation
pumps, and irrigation system were already on his property when he purchased it in 1998.

At the conclusion of the trial, the trial court determined that the declaration created
a license and not an easement under Kansas law. The court further found that the berm
and plantings did not create an unreasonable obstruction and that, even if the declaration
created an easement, "there is sufficient room for persons to pass and there is sufficient
room for all equipment." Finally, the court held that the irrigation system and dock did
not create unreasonable obstructions.

9

As a result, the trial court entered judgment in favor of Blocks and Ullah on the
Gilmans' declaratory judgment action. The trial court entered judgment in favor of the
Gilmans on Blocks and Ullah's request for relief regarding the sprinkler system.

DID THE TRIAL COURT ERR IN DETERMINING THAT
THE DECLARATION CREATED A LICENSE?
On appeal, the Gilmans first argue that the trial court erred in determining that the
March 1976 declaration created a license instead of an easement in the 15-foot area
surrounding the party pond.

The interpretation and legal effect of written instruments are matters of law over
which an appellate court exercises unlimited review. Miller v. Westport Ins. Corp., 288
Kan. 27, 32, 200 P.3d 419 (2009). Regardless of the trial court's construction of a written
instrument, an appellate court may construe a written instrument and determine its legal
effect. City of Arkansas v. Bruton, 284 Kan. 815, 828-29, 166 P.3d 992 (2007).

"Generally, if a written instrument has clear language and can be carried out as
written, rules of construction are not necessary. [Citation omitted.]" Bruton, 284 Kan. at
829. A court must examine all four corners of a written instrument and analyze particular
language in consideration of the entire instrument and not with a critical analysis of a
single or isolated provision. Marquis v. State Farm Fire & Cas. Co., 265 Kan. 317, Syl. ¶
3, 961 P.2d 1213 (1998); T.R. Inc. of Ashland v. Brandon, 32 Kan. App. 2d 649, Syl. ¶ 2,
87 P.3d 331 (2004).

A written instrument is ambiguous, however, when the application of rules of
interpretation to the whole fails to ascertain which one of two or more meanings is
conveyed by the parties' words. Central Natural Resources v. Davis Operating Co., 288
Kan. 234, 245, 201 P.3d 680 (2009). "The question of whether a written instrument is
ambiguous is a question of law subject to de novo review." Bruton, 284 Kan. at 829.
10

Differences between Easements and Licenses
In addressing the parties' arguments as to whether the declaration created an
easement or a license, we find it helpful to outline the differences between an easement
and a license. An easement is a permanent interest in real property and must be created
by deed or prescription. Stanolind Pipe Line Co. v. Ellis, 142 Kan. 102, 105, 45 P.2d 846
(1935). But see Railroad Co. v. Railway Co., 9 Kan. App. 281, 60 Pac. 541 (1900) (It is
not necessary for the creation of an easement that there be an executed, witnessed,
acknowledged, and recorded deed; a writing is sufficient.). Moreover, a declaration that is
filed of record can create an easement in real property. See Chancy v. Chancy Lake
Homeowners Ass'n, Inc., __ So. 3d __, __ (Ala. Civ. App. 2010); Avery Dev. v. Village by
the Sea Condo, 567 So. 2d 447, 448 (Fla. Dist. App. 1990) (determining that declaration
filed of record created access easement).

On the other hand, a license is a personal privilege to do some act or series of acts
upon the land of another without possessing any estate in the land. A license may be
created by parol and is generally revocable at the will of the owner of the land in which it
is to be enjoyed, by the death of the licensor, by conveyance of the lands to another, or by
whatever would deprive the licensee of doing the acts in question or giving permission to
others to do them. Stanolind Pipe Line Co. v. Ellis, 142 Kan. at 105.

Quoting 2 Tiffany Real Property 1202 (2d ed. 1920) 1202, our Supreme Court in
Stanolind further outlined the distinctions between license and an easement as follows:

"'In so far as an easement involves, as it ordinarily does, the privilege of doing or
not doing a certain class of act on or in connection with another's land, there is a
superficial resemblance between an easement and the privilege created by a license. The
distinction between such an easement and a license privilege lies primarily in the fact that
the licensee has a privilege and nothing more, while the holder of an easement has not
only a privilege but also rights against the members of the community in general,
11

including the owner of the land, that they refrain from interference with the exercise or
enjoyment of the privilege.'" 142 Kan. at 105.

Plain Language of Declaration
Here, in determining that the declaration created a license for the use of the 15-
foot area of land surrounding the pond, the trial court looked only to the language of
paragraph 4 and focused on the word "license" within that provision:

"The Declaration itself is a contract between these parties. And, as a contract, it is
to be interpreted according to the plain meaning of the language that is used. It is not to
be interpreted by any rules of interpretation unless it is ambiguous. And the Court finds
that this Declaration is not ambiguous. It uses quite plainly and clearly the word license
on two occasions in Paragraph 4. The Court is not to look at other areas of the contract
and create an ambiguity when none otherwise exists.

"So, the Court feels that, under the circumstances of this case, the Court needs to
look squarely at the language of Paragraph 4, and specifically of the use of the word
'license' in two separate occasions.

"'License,' as the Court has quoted from the cases that the Court has directed our
attention to, a license does not convey an interest in land and is not assignable. And, as
such, it is not an easement as such which can be enforced as a–or can be enforced as an
estate in land.

"So, the Court finds that Paragraph 4, and the Declaration itself, under the law of
our State, creates a license and not an easement." (Emphasis added.)

Inconsistent with the principles of contract interpretation, the trial court isolated
the language in paragraph 4 of the declaration to determine the intent of the parties.
Nevertheless, as set forth previously, we must examine all four corners of the written
instrument and analyze the language of paragraph 4 in consideration of the entire
12

declaration and not with a critical analysis of a single or isolated provision. See T.R. Inc.
of Ashland, 32 Kan. App. 2d at 653.

Moreover, there is abundant authority that the label given by the parties to the
right created (a license or a lease) does not dictate its legal effect. See Bruce & Ely, The
Law of Easements & Licenses in Land § 1:5, p. 1-13 (2010); 25 Am. Jur. 2d, Easements
and Licenses § 117, pp. 612-13 ("In making its determination as to whether a transaction
is a license or a lease, a court is not bound by characterization of the parties."). Here, the
fact that the parties to the declaration specifically used the word "license" twice within
paragraph 4 does not definitively establish that the parties intended to create a license.

Bruce & Ely, The Law of Easements & Licenses in Land § 1:5, pp. 1-12 to 1-17,
has set forth the following five factors to be considered in ascertaining whether the intent
of the parties was to create an easement or a license:

"1. Manner of creation of right (oral or written). The mere granting of a right in writing
does not automatically render it an easement. . . . The existence or absence of words that
are 'ordinarily used in the conveyances of real estate' is an important factor. The label that
the parties give the right, however, does not dictate its legal effect. For example, a right
called a lease may in reality be an easement or a license.

"2. Nature of right created. The creation of a right to be used in a particular portion of the
servient estate indicates that an easement was intended. Likewise, the existence of
authority in the holder of the right to maintain or improve the burdened property suggests
an easement.

"3. Duration of right. A set duration indicates an easement. A grant in perpetuity also
indicates an easement. Further, an express provision that the right benefits its holder's
successors and assigns supports the conclusion that an easement was intended. Similarly,
an easement is indicated if the right expressly binds the servient landowner's successors
and assigns. Conversely, the deletion of words of succession may indicate a license.
13

Finding an easement, however, does not depend upon the existence of 'magic words such
as "successors and assigns."'

"4. Amount of consideration, if any, given for right. Substantial consideration indicates an
easement. In this regard, it is necessary to distinguish consideration given for the right
from money expended in reliance upon the right. An 'irrevocable license' may result from
expenditures made in reliance on an existing license.

"5. Reservation of power to revoke right. An express reservation of the power to cancel,
revoke, or terminate the right may be considered to indicate a license. However, a power
to terminate in the landowner does not necessarily mean that a license was created.
Specifying a power to terminate for a particular reason or in limited circumstances may
be seen as inconsistent with the unabridged right to revoke retained by one who grants a
license. Moreover, an easement may be expressly subject to termination by the servient
owner upon the occurrence of a specified event."

Here, an application of the above five factors to the March 1976 declaration leads
to the conclusion that the parties to the declaration intended to create an easement in the
15-foot tract of land surrounding the pond. Specifically, we note that the property right
was embodied in a written document that was filed of record. The right was created in a
particular portion of the land (the 15-foot tract of land surrounding the pond). Moreover,
the holders of the right had the authority to maintain the tract of land subject to the
easement ("this declaration is made in order to provide for the ownership and use of such
pond and dam, as well as the maintenance thereof").

In addition, the March 1976 declaration expressly binds the parties' successors and
assigns: "John E. Nash and Margaret E. Nash, husband and wife, and J & J Development
Co., Inc. for themselves and for their heirs, executors, successors and assigns, and for
their future grantees, hereby declare that the above described real estate shall be and the
same hereby is, subject to the following declaration . . . ." (Emphasis added.) The parties
14

further ensured that their intent to bind their successors and assigns was clear by
including the following provision in the declaration:

"Persons bound. All persons and corporations who now own or shall hereafter
acquire any interest in the property subject to this instrument shall be taken to hold and
agree and covenant with the owner of said lots, and with their successors and assigns, to
conform to and observe these covenants, restrictions and agreements as to the use and
maintenance of the pond thereon." (Emphasis added.)

The parties then included the following language, which further emphasizes their
intent that the rights contained in the declaration were not personal to the parties but
instead were to run with the land: "The benefits and obligations of this instrument shall
run with the land herein described so long as the pond and dam continues to exist."
(Emphasis added.) Such language binding a landowner's successors and assigns and
creating a right that runs with the land is contradictory to the right created by a license.
See 25 Am. Jur. 2d, Easements and Licenses § 117, pp. 612-13 ("Generally, a license in
respect of real property, since it is a mere personal privilege, cannot be assigned or
transferred by the licensee. A license does not pass with the title to the property, but is
only binding between the parties, expiring upon the death of either party.").

In applying the fourth factor to the March 1976 declaration, we note that the only
specific recitation of consideration is the phrase "[i]n consideration of these premises." It
is apparent from the declaration, however, that the consideration given by each party was
the right to enter upon and use the 15-foot tract of land which was part of the party's
property. Such consideration would be substantial in light of the fact that each party's
property would be burdened by the right granted within the 15-foot tract of land from the
water's edge.

Finally, the declaration contains no express reservation of the power to cancel,
revoke, or terminate the right in the 15-foot tract of land. In fact, the only express
15

limitation on the right in the 15-foot tract of land surrounding the pond is the continued
existence of the pond and dam: "The benefits and obligations of this instrument shall run
with the land herein described so long as the pond and dam continues to exist."

Although the March 1976 declaration uses the term "license" within paragraph 4, a
reading of the entire document shows that the parties intended to create an easement in
the 15-foot tract of land surrounding the party pond. The declaration is a written
document, filed of record, that creates rights in neighboring landowners' real property
that run with the land and are binding on the landowners' heirs, successors, and assigns.
In addressing the particular question before this court, we conclude that the declaration
created an easement in the 15-foot tract of land surrounding the pond on lot 2 in favor of
the owners of lot 3, which are currently the Gilmans.

Ambiguity in Declaration
Nevertheless, even if the use of the term "license" within paragraph 4 of the March
1976 declaration created an ambiguity as to whether the parties intended to create a
license or an easement, the evidence presented at trial establishes that the parties' intent
was to create an easement and not a license.

Where ambiguity or uncertainty of contract is involved in a written instrument, the
intention of the parties is not ascertained by resort to literal interpretation, but by
considering all language employed, the circumstances existing when the agreement was
made, the object sought to be attained, and other circumstances, if any, which tend to
clarify the real intention of the parties. Amoco Production Co. v. Wilson, Inc., 266 Kan.
1084, 1088, 976 P.2d 941 (1999). "To determine whether an easement is the intention of
the parties, courts will examine the language of the grant, the circumstances surrounding
its creation and the property involved, with construction in favor of the grantee." 7
Thompson on Real Property § 60.03(a)(7), p. 485 (2d ed. 2006); see Lago v. Guerrette,
592 A.2d 939, 942 (Conn. 1991).
16

We are required to construe any ambiguities against the party drawing up the
March 1976 declaration. See Berns v. Standish Pipe Line Co., 152 Kan. 453, 459, 105
P.2d 893 (1940) (contract granting right to lay pipeline through land was construed
against the party drawing up the contract). The parties drawing up the March 1976
declaration who actually granted the right in the 15-foot tract of land surrounding the
pond were the previous landowners of lots 2, 3, and 4. Assuming that there was an
ambiguity in the declaration, we note that the previous landowners are the ones who
created the ambiguity by referring to the right in paragraph 4 as a license but titling it as
an easement. "[I]f there was an ambiguity in the terms used [by the drafter of the
contract], it must be construed liberally in favor of the other party." 152 Kan. at 459.

As discussed at length previously, the language used by the parties throughout the
March 1976 declaration is language that is used in the creation of an easement. The
parties made clear that the declaration was to extend to their successors and assigns and
that the benefits and obligations of the declaration were to run with the land as long as the
pond and dam continued to exist. Such language is contrary to the right created by a
license. See 7 Thompson on Real Property § 60.03(a)(7)(iv), p. 493 ("A license is
terminable at the will of either party, cannot be assigned, does not pass at death,
terminates upon conveyance of the land, is an agreement binding only upon the parties.").

Additionally, the fact that the parties filed the March 1976 declaration of record
indicates that the parties intended to create an easement and not a license. An easement is
subject to the Statute of Frauds and must be recorded in order to protect oneself from
losing one's easement to a bona fide purchaser of the servient tenement. 7 Thompson on
Real Property § 60.03(a)(7)(iv) and (8), p. 492-93. On the other hand, there is no written
or recording requirement for licenses and, thus, they are often oral and created by parol.
See Stanolind Pipe Line Co. v. Ellis, 142 Kan. at 105.

17

Further, the location of the party pond on the three tracts of land indicated that the
parties had intended to create an easement by the 1976 declaration. Based on the location
of the pond on lots 2, 3, and 4, lot 3's land was separated by the pond. The owners of lot 3
(now Gilmans) would be able to access their property on the back side of the pond if they
were allowed to go around the pond, requiring access onto a small portion of either lot 2
or 4. If the owners of lot 3 were not allowed to go onto lot 2 or 4, it would be extremely
difficult, if not impossible, for the owners of lot 3 to access and maintain their land on the
back side of the pond. Moreover, because it was a party pond, the owners of lots 2, 3, and
4 would conceivably need access to a limited land area around the pond in order to deal
with maintenance issues concerning the pond and dam. In fact, under paragraph 3 of the
declaration, the grant of the easement gave the right "to repair or rebuild the whole or any
part of the [p]ond and dam" if the owners of two or more of the previously mentioned lots
agreed.

Finally, the testimony of Kenneth Ellington, who was the owner of lot 4 and not a
party to the proceedings, established that his understanding was that there was an
easement in the 15-foot tract of land surrounding the pond. Ellington, who had been the
owner of lot 4 since August 1979, testified that he was "told that there was an easement"
when he moved to the property. He further testified as to his understanding of the
easement as follows: "Well, each party that was connected to the pond could have access
to all the way around the pond for 15-foot easement."

Based on the evidence presented to the trial court, we determine that the previous
landowner parties' intent, as shown in the language of the declaration and the
circumstances surrounding its creation, was to create an easement in the 15-foot tract of
land surrounding the party pond.

18

Unreasonable Interference with Use of Easement
The question now turns to whether Blocks and Ulla's construction of the berm and
landscaping work within the 15-foot easement unreasonably interfered with the Gilman's'
use of the easement. "It is well settled that the owner of the servient tenement may use
the land over which the way extends in any manner which does not [un]reasonably
interfere with its use. (Potter v. Northern Natural Gas Co., 201 Kan. 528, 441 P.2d 802
[1968]; 25 Am. Jur. 2d, Easements and Licenses § 89, p. 494; 28 C.J.S. Easements § 91,
pp. 770-71)." Aladdin Petroleum Corporation. v. Gold Crown Properties, Inc., 221 Kan.
579, 586, 561 P.2d 818 (1977).

In this case, we have determined that there is an easement created by declaration,
which in express terms gives the owners of lots 2, 3, and 4 the privilege of entering upon
each other's property in order to gain access to the pond and dam and "for the ownership
and use of such pond and dam, as well as the maintenance thereof" "which is within
fifteen (15) feet of the water's edge." When one has such an affirmative appurtenant
easement, as have the owners of lots 2, 3, and 4 in this case, such easement carries with it
the right to do such affirmative acts on the servient lot as are necessary to the enjoyment
of the property. See Bruce & Ely, The Law of Easements & Licenses in Land § 8:3, pp.
8-12 to 8-13 ("[T]he parties are deemed to have contemplated the easement holder's right
to do whatever is reasonably convenient or necessary in order to enjoy fully the purposes
for which the easement was granted."). This right includes the right to repair, maintain,
and improve the pond and dam and to enter upon and use the property within 15 feet of
the water's edge, as set forth in paragraph 4 of the March 1976 declaration.

We recognize that the owners of the servient tenement, lot 2, have the right to
make the maximum use of their property as long as such use is not inconsistent with the
rights which they have granted to the tenants of the dominant estate (the Gilmans) under
the March 1976 declaration. Nevertheless, the construction of a berm and landscaping
work that at times has been within 6 inches of the water's edge cannot be held to be
19

consistent with the rights granted to the tenants of the dominant estate. As tenants of the
dominant estate, the Gilmans have the right to repair, maintain, and improve the pond and
dam and enter upon and use the property on lot 2 within 15 feet of the water's edge.
Although Blocks and Ullah contend that they have provided a path for the Gilmans to
use, the exhibits entered at trial show that the Gilmans are unable to get close to the pond
in the area where the berm and landscaping is located. Additionally, they must traverse
over a berm and through mulch and plantings to access the rest of the easement area on
lot 2.

Moreover, Blocks and Ullah admitted that John Gilman must travel around the
pond and enter onto either their lot or the Ellingtons' lot in order to maintain the Gilmans'
property on the back side of the pond. Ullah conceded, however, that the space between
their plantings is not large enough for the Gilmans' mower. The berm and the landscaping
work thus unreasonably interfered with the Gilmans' right to maintain and improve the
pond and dam. See Carson v. Elliott, 111 Idaho 889, 891, 728 P.2d 778 (1986) (raised
garden placed by landowner in circular area of driveway unreasonably interfered with
easement because it occasionally interfered with operation of vehicles). As a result,
Blocks and Ullah, as the servient tenants of lot 2, are subject to the expense of removing
the obstruction that unreasonably interferes with the use by the Gilmans, the dominant
tenants of lot 2, of the easement. See Potterv. Northern Natural Gas Co., 201 Kan. 528,
531, 441 P.2d 802 (1968) ("[T]he dominant tenement easement is not subject to the will
of the possessor of the land." As a result, the court construed a pipeline easement to
require the servient owner to bear the expense of lowering the pipeline.)

In their appellate brief, the Gilmans have requested that this court remand the case
to the trial court for a decision on the issue of the removal of the obstructions.
Presumably, the remand would be to address the extent that Blocks and Ullah would be
required to remove the obstructions around the pond, especially since the testimony
indicated that the waterline does rise and fall, and to set the timeline for such removal.
20

We point out that Blocks and Ullah have argued that if an easement does exist, the
Gilmans should be required to remove a dock and irrigation system that is on lot 3 within
the 15-foot area surrounding the pond. Nevertheless, the testimony at trial established that
the dock and irrigation system were already on the property when the Ellingtons moved
onto lot 4 in 1979. There is no indication that any objection had been made to the dock
and pumps before Blocks and Ullah moved onto lot 2 in 2005, and it is apparent that the
previous landowners of lots 2, 3, and 4 had consented to those obvious improvements on
the land surrounding the pond, pursuant to paragraph 2 of the March 1976 declaration. As
a result, the Gilmans should not be required to remove the dock and irrigation system on
lot 3.

DID THE TRIAL COURT ERR IN DENYING BLOCKS AND ULLAH'S REQUEST FOR
DECLARATORY RELIEF WITH RESPECT TO THE SPRINKLER SYSTEM?

Finally, in their cross-appeal, Blocks and Ullah contend that the trial court erred in
denying their claim for trespass by the Gilmans' sprinkler system without hearing
evidence on the matter. Apparently, the parties had an agreement to litigate the issue
regarding the sprinkler system separately from the other issues in the case.

The problem here is that the parties never told the trial court of their agreement
before the trial occurred and never requested before trial that the trial court hear Blocks
and Ullah's claim regarding the sprinkler system at a separate proceeding. A trial judge,
as the presiding officer of a court, has control over the proceedings in a case. The parties
do not control the court's calendar. The parties easily could have requested a pretrial or
scheduling conference and asked for a bifurcated trial. Their failure to request separate
trials amounts to invited error, and we will not require the trial court to hear additional
evidence on the issue of the sprinkler system. See Butler County R.W.D. No. 8 v. Yates,
275 Kan. 291, 296, 64 P.3d 357 (2003) ("A party may not invite error and then complain
of that error on appeal. [Citation omitted.]"); Catholic Housing Services, Inc. v. State
21

22

Dept. of SRS, 256 Kan. 470, 476, 886 P.2d 835 (1994) (extending the invited error rule to
encompass procedural problems caused by movant in administrative proceedings).

Based on the evidence presented at trial, we determine that the trial court properly
granted judgment in favor of the Gilmans on Blocks and Ullah's counterclaim.

Affirmed in part, reversed in part, and remanded on the issue of removal of the
obstructions on lot 2.