Presnell v. Cullen ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 123,877
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
TRACY PRESNELL,
Appellant,
V.
MICHELE CULLEN,
President of Central Kansas Conservancy,
Appellee.
MEMORANDUM OPINION
Appeal from McPherson District Court; MARILYN M. WILDER, judge. Opinion filed May 6, 2022.
Affirmed.
Tracy Presnell, appellant pro se.
Ann M. Elliott, of Wise & Reber, L.C., of McPherson, for appellee.
Before MALONE, P.J., SCHROEDER and HURST, JJ.
PER CURIAM: This is a small claims appeal involving a stretch of railroad corridor
that runs through Tracy Presnell's property in McPherson County. The Central Kansas
Conservancy (Conservancy) acquired the railroad easement for interim use to develop a
recreational trail open to the public under the National Trails System Act (Trails Act), 16
U.S.C. § 1247(d) (2018). Presnell argues Michele Cullen, as president of the
Conservancy, did not have the right to cut down vegetation located within the trail
easement on his property to develop the recreational trail and further claims the district
court erred by not awarding him damages for the value of the destroyed vegetation.
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Presnell also argues the district court erred in awarding legal fees to Cullen as the
president of the Conservancy. After review, we find no error by the district court and
affirm.
FACTS
The facts are largely undisputed. Presnell owns property in McPherson County
encumbered by a railroad easement.
In 1997, Union Pacific Railroad Company conveyed its railroad easement to the
Conservancy by donative quitclaim deed to develop a public recreational trail. The
Conservancy submitted a project plan to the McPherson County Commission, explaining
its initiative to develop the Meadowlark Trail, a 12.5-mile recreational trail on the
railroad corridor between McPherson and Lindsborg. The Conservancy was charged with
developing and maintaining the recreational trail to preserve the railroad corridor for
potential railroad use in the future in accordance with the Trails Act.
On August 4, 2018, Cullen, along with other Conservancy members and
volunteers, entered the railroad corridor, including the easement on Presnell's property,
and cut down trees and other vegetation to develop the recreational trail. In January 2019,
Presnell filed a small claims action against Cullen, individually, for "cutting down trees
on [his] property, legal fees, and emotional distress." The small claims court found for
Cullen, and Presnell timely appealed to the district court.
The matter proceeded to trial in August 2020, and the district court denied
Presnell's request for relief. The district court explained the Conservancy's easement
covered the entire railroad corridor, an area roughly 66 feet wide, and found the trees
removed from Presnell's property were located within the railroad corridor to develop and
maintain the recreational trail. The district court ultimately concluded the Conservancy
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had the right to remove any and all vegetation it wanted within the easement, Presnell
was not entitled to damages for a taking of property, and Cullen was entitled to her
attorney fees. Additional facts are set forth as necessary herein.
ANALYSIS
I. PRESNELL'S REVERSIONARY PROPERTY INTEREST WITHIN THE RAILBANKED
RAILROAD RIGHT-OF-WAY DOES NOT PROVIDE HIM WITH RELIEF FOR HIS
CLAIMS.
For clarity and brevity, we have combined many of Presnell's issues into one,
addressing the claim as one arguing the district court erred in finding he had no interest in
the vegetation growing on his property located within the Conservancy's easement even
though he was the fee simple landowner. Presnell admits the railroad corridor and
easement was about 66 feet wide but argues the Conservancy merely had a
nonpossessory interest in the property, which was limited to a specific use within the
right-of-way corridor. He asserts the easement holder—here, the Conservancy—owes a
duty to the servient estate—Presnell's property—to protect and preserve the trees and
other vegetation in the easement area when it could reasonably do so.
The Conservancy asserts railroads are regulated by federal law and argues railroad
easements "are far closer to ownership in fee than to garden variety easements." The
Conservancy, as the Meadowlark Trail sponsor, contends it had the right to exclusive use
of the entire railroad corridor.
Standard of Review
Here, the relevant facts are not in dispute; therefore, this issue presents pure
questions of law subject to unlimited review. To the extent the parties' arguments also
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involve statutory interpretation, our review is de novo. Nauheim v. City of Topeka, 309
Kan. 145, 149, 432 P.3d 647 (2019).
Applicable Legal Principles and Statutory Background
Congress enacted the original Trails Act in 1976. In recognition of the Trails Act,
the Kansas Legislature, in 1995, adopted the Kansas Recreational Trails Act (KRTA),
K.S.A. 58-3211 et seq., which relates to property transferred or conveyed for interim use
and development of a rail line as a recreational trail. Board of Miami County Comm'rs v.
Kanza Rail-Trails Conservancy, Inc., 292 Kan. 285, 287-88, 255 P.3d 1186 (2011).
Under K.S.A. 58-3211(b), the KRTA defined a recreational trail as "a trail created
pursuant to subsection (d) of 16 U.S.C. 1247 (1983)." Further, under K.S.A. 66-
525(a)(1), a railroad right-of-way will not be considered abandoned unless an appropriate
federal or state authority issues an abandonment order. Another panel of our court, in
interpreting K.S.A. 66-525, noted Kansas law on railroad abandonment was not
inconsistent with federal law, which requires the Surface Transportation Board (STB) to
issue an order of abandonment before a railroad right-of-way can be abandoned. Bitner v.
Watco Companies, 43 Kan. App. 2d 495, 498, 226 P.3d 563 (2010).
Discussion
Presnell's arguments are improperly briefed and/or unpersuasive on the merits.
Abandonment
Presnell seems to incidentally raise an argument the railroad abandoned its right-
of-way and the property interest should return to him as owner of the servient estate. An
argument incidentally raised and not adequately briefed is considered waived and
abandoned. See Russell v. May, 306 Kan. 1058, 1089, 400 P.3d 647 (2017). Even if
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Presnell adequately briefed the abandonment issue, the record does not contain an order
issued by an appropriate federal or state authority showing the railroad abandoned its
right-of-way. In 1997, Union Pacific Railroad, by donative quitclaim deed, transferred
and conveyed the railroad easement traversing Presnell's property to the Conservancy for
interim use to develop and maintain a recreational trail. Under 16 U.S.C. § 1247(d), the
Conservancy's interim use of the right-of-way must not be treated as an abandonment of
the use of such right-of-way for railroad purposes.
Extent and scope of easement
Presnell acknowledges the Conservancy received a donative quitclaim deed for the
easement approximately 66 feet in width. But Presnell argues the Conservancy needed
only an area of about 10 to 14 feet wide to develop the Meadowlark Trail and was thus
limited to using and developing that narrow area. Presnell asserts he owns the land and
vegetation outside of the 10 to 14 feet required for the trail, and the Conservancy had no
right to unnecessarily cut vegetation on his property.
Presnell suggests the district court incorrectly relied on Central Kansas
Conservancy v. Sides, 56 Kan. App. 2d 1099, 443 P.3d 337 (2019)—a case related to the
same public rail-trail corridor—to determine the Conservancy controlled the entire width
of the easement. Presnell explains the district court erred in relying on Sides because the
issues addressed "had nothing to do with trees and vegetation growing out of the real
estate underlying the easement." In Sides, the panel stated in relevant part:
"In short, we conclude that the Conservancy owns the trail use easement and has the right
to develop the rail corridor into a trail. . . .
"On April 16, 1997, in accordance with the Trails Act, Union Pacific [Railroad]
and the Conservancy entered 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
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Conservancy obtained the exclusive right to develop the railroad corridor for recreational
trail use." 56 Kan. App. 2d at 1101.
Generally, a railroad acquires only an easement for a right-of way on a strip of
land, which reverts to the original landowner upon abandonment by the railroad. Jenkins
v. Chicago Pacific Corp., 306 Kan. 1305, 1309, 403 P.3d 1213 (2017). It appears
undisputed the railroad acquired only an easement for a right-of-way, but the
Conservancy argues a railroad right-of-way is essentially the same as fee ownership of
the land. The record does not contain the deed conveying the land to Union Pacific
Railroad Company to affirmatively determine whether the railroad owned the land in fee
simple or owned an easement for railroad purposes. The record does provide the donative
quitclaim deed from the railroad to the Conservancy. The quitclaim deed stated:
"This quitclaim deed is made on an 'as is' basis without any warranties or
representations of any kind or nature whatsoever, express or implied, concerning the
conditions of the property, and grantee hereby specifically waives any implied warranties
provided for by Kansas law (if any) including any and all warranties regarding fitness for
any particular use or purpose whatsoever."
Prior litigation over the same railroad corridor suggests the railroad owned only an
easement. Another panel of our court, as well as the United States District Court for the
District of Kansas, have recognized the easement at issue is just that, an easement. See
Barclay v. United States, 351 F. Supp. 2d 1169, 1173-74 (D. Kan. 2004); Sides, 56 Kan.
App. 2d at 1101. The Conservancy, however, goes too far in asserting the easement
provides exclusive rights to the property in fee simple. While Sides involved an issue
regarding adverse possession over the interim trail use easement, rather than improper
removal of vegetation, the panel explained: "[T]he Conservancy's trail use easement is
an easement for public use." 56 Kan. App. 2d at 1119.
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The Conservancy had a right to reasonably use the railroad corridor to develop and
maintain the recreational trail whether it had fee simple possession or an easement. The
district court appropriately determined the Conservancy was entitled to remove
vegetation on its easement for purposes of developing and maintaining the Meadowlark
Trail. The district court went too far, however, in determining the Conservancy had a
right to remove any vegetation on the right-of-way for any purpose, even to retaliate
against Presnell. But no evidence suggested the Conservancy removed the vegetation at
issue in retaliation. The Conservancy presented evidence the vegetation was removed
within the easement, at the discretion of a member or volunteer, to build an adequate trail
and maneuver the equipment necessary for trail development. Evidence showed the
Conservancy tries to preserve vegetation around the trail for shade and wind breaks. The
district court correctly determined the Conservancy reasonably removed vegetation
within the trail easement.
Trespass
Presnell contends Cullen directed Conservancy members and volunteers to cut
trees and vegetation outside the area needed for trail development and, therefore,
trespassed onto his property. Presnell relies on the Restatement (Third) of Property
regarding servitudes as well as caselaw suggesting the owner of the servient estate can
bring an action for trespass if improper and unnecessary damages occur on the property
without full compensation. See Mall v. C. & W. Rural Electric Cooperative Ass'n, 168
Kan. 518, 521-22, 213 P.2d 993 (1950) ("Shade trees and shrubs on the right of way of a
township road to which the fee belongs to the abutting owner, are a part of the fee and
cannot be taken for private purposes or for purposes inconsistent with highway purposes
without full compensation to the fee owner. [Citations omitted.]"); Miessler v. Solida &
Sons Tree Service, Inc., No. 94,352, 2006 WL 2465508, at *1-2 (Kan. App. 2006)
(unpublished opinion) (in a trespass action, the owner of the servient estate bears the
burden to establish work performed on the easement unnecessarily injured the property or
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was improper); Restatement (Third) of Property (Servitudes) § 8.3(b) (2000) ("Excessive
use or unauthorized use of an easement is generally a trespass to the servient estate for
which damages and injunctive relief are normally granted.").
The Conservancy points out the KRTA imposes duties on trail sponsors to develop
and maintain the recreational trail in a reasonable, prudent, and safe manner. See K.S.A.
58-3212(a)(5) ("develop and maintain the recreational trail in a condition that does not
create a fire hazard."); K.S.A. 58-3212(a)(11)(B) ("maintain all bridges, culverts,
roadways intersections and crossings on the trail, essential to the reasonable and prudent
operation of the trail . . . .").
Interestingly, Presnell does not contend Cullen ever overstepped the boundary of
the easement. The Conservancy has not excessively used the trail easement or used the
easement in an unauthorized manner. As discussed above, the Conservancy did not act
unreasonably or unnecessarily to injure or damage Presnell's property. The Conservancy
had a right to reasonably use the entire 66-foot easement it acquired to develop the
Meadowlark Trail. Presnell's trespass claim fails.
II. PRESNELL IS NOT ENTITLED TO DAMAGES FOR VEGETATION REMOVED AND THE
DISTRICT COURT CORRECTLY AWARDED CULLEN HER ATTORNEY FEES.
Presnell asserts the district court erred in not awarding him compensation for the
value of the vegetation removed from his property as the owner of the servient estate of
the easement. He also argues the district court erroneously determined Cullen, as
president of the Conservancy, was permitted to cut down vegetation on the easement and,
therefore, erred in awarding Cullen attorney fees. Presnell asks us to reverse the district
court's award of attorney fees. His arguments on these points raise questions requiring
interpretation of federal and state statutes over which we have unlimited review.
Nauheim, 309 Kan. at 149. However, "where there is a binding federal court decision
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interpreting a federal statute, we are obligated to follow that interpretation." In re
Marriage of Williams, 307 Kan. 960, 968, 417 P.3d 1033 (2018).
Taking and damages
The Fifth Amendment to the United States Constitution states, in relevant part:
"[P]rivate property [shall not] be taken for public use, without just compensation." While
the United States Supreme Court noted only some rails-to-trails conversions amount to a
taking, the Trails Act authorizes just compensation if there was a taking. Preseault v.
Interstate Commerce Commission, 494 U.S. 1, 13, 16, 110 S. Ct. 914, 108 L. Ed. 2d 1(1990) ("Some rights-of-way are held in fee simple."). Again, it appears uncontested the
rails-to-trails corridor at issue here was an easement and was not owned by the railroad in
fee simple. See Barclay, 351 F. Supp. 2d at 1170 (plaintiffs owned property subject to
railroad easement for railroad purposes); Sides, 56 Kan. App. 2d at 1100 (Conservancy
owns trail use easement to develop Meadowlark public trail).
Under the Trails Act, the STB can preserve a railroad right-of-way that is no
longer in service for future railroad use, allowing interim use of the right-of-way for a
recreational trail. This process is called "railbanking." Board of Miami County Comm'rs,
292 Kan. at 288. Once the STB issues a notice of interim trail use (NITU), the six-year
statute of limitations begins running for reversionary landowners to bring an inverse
condemnation action against the United States. Issuing the NITU constitutes a
government action that effectively prevents abandonment of the railbanked corridor and
precludes the vesting of the reversionary landowner's property rights in the right-of-way.
Caldwell v. United States, 391 F.3d 1226, 1235 (Fed. Cir. 2004), holding modified by
Hardy v. United States, 965 F.3d 1338 (Fed. Cir. 2020). "After a final trail use agreement
is reached [between the railroad and the trail sponsor], the NITU remains in effect
indefinitely and 'abandonment cannot be accomplished under the . . . NITU until trail use
terminates (without restoration of rail service).' [Citation omitted.]" Caldwell, 391 F.3d at
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1234. If a trail use agreement is reached—as was done here—the taking becomes
permanent under the NITU unless the trail use agreement is abandoned, and rail service is
not restored.
The Caldwell court relied on United States v. Dow, 357 U.S. 17, 23-24, 78 S. Ct.
1039, 2 L. Ed. 2d 1109 (1958), which "rejected, as 'bizarre,' the argument that there were
'two different "takings" of the same property, with some incidents of the taking
determined as of one date and some as of the other.'" Caldwell, 391 F.3d at 1235. In fact,
the Dow Court explained a federal taking for a particular use—there, a pipeline right-of-
way—constitutes a single taking. 357 U.S. at 23-25. Applying this reasoning only one
taking occurred when the easement was assigned to the Conservancy, and
Presnell suffered no loss upon which the district court could award him damages.
Attorney fees
K.S.A. 2020 Supp. 61-2709(a) states, in relevant part:
"An appeal may be taken from any judgment under the small claims procedure
act. . . . If the appellee is successful on an appeal pursuant to this subsection, the court
shall award to the appellee, as part of the costs, reasonable attorney fees incurred by the
appellee on appeal."
Our Supreme Court explained the party who obtains an affirmative judgment in
his or her favor at the end of a case is the successful, or prevailing, party, and "[t]he
attorney fees provision in K.S.A. 61-2709(a) is mandatory." Hodges v. Johnson, 288 Kan.
56, 71, 199 P.3d 1251 (2009). Presnell does not argue whether the statute is mandatory or
directory. Rather, he simply argues the district court erred in determining Cullen, on
behalf of the Conservancy, was permitted to cut vegetation within the easement and,
because the district court erred in finding Cullen was the prevailing party, it erred in
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awarding attorney fees. Whether the statute is mandatory or directory makes no practical
difference here as Presnell's claim fails, and the district court properly awarded Cullen
her reasonable attorney fees in the amount of $6,812.50.
Affirmed.
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