Mahlandt v. Jabes

658 P.2d 356, 232 Kan. 435, 1983 Kan. LEXIS 239
CourtSupreme Court of Kansas
DecidedJanuary 14, 1983
DocketNo. 53,685
StatusPublished
Cited by1 cases

This text of 658 P.2d 356 (Mahlandt v. Jabes) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mahlandt v. Jabes, 658 P.2d 356, 232 Kan. 435, 1983 Kan. LEXIS 239 (kan 1983).

Opinion

The opinion of the court was delivered by

Holmes, J.:

This case was filed as a boundary dispute, quiet title action, and an action for both actual and punitive damages. The defendants filed a counterclaim seeking similar relief. The litigation involves: five common boundaries dividing the parties’ properties; title to two tracts of land adjacent to one of the boundaries; an earthen dike built by plaintiffs on defendants’ land; and a section of fence torn out and held by the defendants when they discovered it encroaching upon them. Both parties have appealed from various orders of the trial court. The case was transferred to this court pursuant to K.S.A. 20-3018(c).

Plaintiffs Vern Mahlandt and his wife, Alpha Mahlandt (hereafter Mahlandt), are the owners of the East one-half of the Northeast quarter, the West one-half of the Southeast quarter and the Northeast quarter of the Southeast quarter of Section 20, and the Northwest quarter of the Southwest quarter of Section 21, all in Township 29 South, Range 3 East of the 6th Principal Meridian, Butler County, Kansas.

Defendants E. E. Jabes and his wife, Clara Jabes (hereinafter Jabes), are the owners of the West one-half, the West one-half of the Northeast quarter and the Southeast quarter of the Southeast quarter of Section 20, and the Southwest quarter of the Southwest quarter of Section 21, all in Township 29 South, Range 3 East of the 6th Principal Meridian, Butler County, Kansas.

The property descriptions and the various allegations are difficult to keep in mind and therefore we have attached hereto as Appendix “A” a rough sketch of the areas in question. The drawing as attached was not an exhibit before the trial court but was prepared to assist in explaining and understanding the issues and facts in this opinion. It does not purport to be drawn to scale. The boundary lines which are in question are (1) the line between the West one-half and the East one-half of the Northeast quarter of Section 20 (hereafter line A); (2) the line between the West one-half of the Northeast quarter and the West one-half of the Southeast quarter of Section 20 (hereafter line B); (3) the line between the Southwest quarter and the Southeast quarter of Section 20 (hereafter line C); (4) the line between the Southeast quarter of the Southeast quarter and the Southwest quarter of the Southeast quarter of Section 20 (hereafter line D); and (5) the line between the Southeast quarter of the Southeast quarter and the Northeast quarter of the Southeast quarter of Section 20 and its [437]*437extension to the east as the line between the Southwest quarter of the Southwest quarter and the Northwest quarter of the Southwest quarter of Section 21 (hereafter line E), all in Township 29 South, Range 3 East of the 6th Principal Meridian, Butler County, Kansas. The five boundary lines originally in question are marked A through E on the attached appendix “A.” Also attached as appendix “B” is a survey of all of Section 20 upon which the disputed boundaries are also marked A through E. More will be said about both appendices later.

The tracts of land being fought over have been designated B-l and B-2 by the parties and are so shown on appendix “A.” They resulted from the meanderings of Pole Cat Creek which snakes back and forth across boundary line B. B-l is a tract, north of the B survey line, which Mr. Mahlandt has been farming for a number of years. He wants title to that land quieted in himself and his wife. B-2 is south of the survey line where the creek dips into Mahlandt property. The Jabes do not want B-2.

Near the center of Section 20, and the intersection of lines B and C, is an old artesian well. The plaintiffs intended to use the well to fill a pond which they were constructing in 1961 or 1962 just south of line B. Mr. Mahlandt dug a canal from the well to the pond area, but the well production was not adequate to fill the pond. So, Mr. Mahlandt dug two more wells near the first one in order to supply the necessary water. To prevent the well water from running onto the defendants’ land, and to divert the water toward the canal and thence into the plaintiffs’ pond, Mr. Mahlandt constructed an earthen dike on the defendants’ property. Mr. Jabes had given the plaintiffs permission to construct the dike.

Around the time when Mr. Mahlandt was building his pond, he approached Mr. Jabes about the possibility of purchasing tract B-l from him. He also offered to simply trade B-2 for B-l and to establish boundary line B on the south bank of Pole Cat Creek. Mr. Jabes refused the offers. Mr. Jabes did, however, tell Mr. Mahlandt to use B-l until such time as Jabes needed it himself. Mr. Mahlandt subsequently tore down some of the existing fence along line B and built new fence along the south bank of the creek. He also built a dike along the south bank around the loop of B-l and back onto his own property. Mr. Mahlandt has been farming B-l as part of his wheat field since that time. He claims to [438]*438have seen cattle pasturing on B-2 but Mr. Jabes denies the utility of that tract.

Problems with boundary line C gave rise to this lawsuit initially. The facts, instances and circumstances regarding line C deserve somewhat more expansive treatment.

Mr. Mahlandt testified that for as long as his family had owned the land east of line C, there had been an old fence running from the center stone at the intersection of lines B and C south to the section road. He thought the old fence was about a hundred years old. The old fence, about midway, took a slight three or four foot jog to the west, toward the property now owned by the Jabes family, before continuing south to the road. Mahlandt used the property east of line C as pasture and occasionally he would receive calls from the understandably irate Mr. Jabes requesting that Mahlandt remove his cattle from Jabes’ wheatfield. Jabes cultivated his property west of line C for the production of wheat. Mahlandt had earlier agreed with Jabes that maintaining the fence along line C would be Mahlandt’s responsibility.

In 1977, Mr. Mahlandt made arrangements to lease his pasture to three other men for summer grazing their livestock. Because the old fence was in such disrepair, the men agreed to help Mahlandt fix the fence in lieu of paying pasture rent. They tore out the old fence and replaced it with a new barbed wire fence. That is when the real feud began.

A few days after the new fence was built, Mr. Jabes happened to be driving along the south section road. He testified that when he looked at Mahlandt’s new fence he noticed that it was in Jabes’ own wheatfield. He said he always farmed his land up to about two feet away from the old fence. But that day, he observed his wheat growing on the Mahlandts’ side of the new fence. Shortly thereafter, Mr. Jabes contacted the county surveyor and requested a survey pursuant to K.S.A. 19-1423.

Mr. Mahlandt was properly notified of the statutory survey to establish boundaries and corners, and the survey was conducted. No appeal was taken from the survey as provided by K.S.A. 19-1426, and the survey was duly recorded. Appendix B is a copy of the survey to which we have added the designation of lines A through E and an indication of the respective properties owned by the parties.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Baraban v. Hammonds
312 P.3d 373 (Court of Appeals of Kansas, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
658 P.2d 356, 232 Kan. 435, 1983 Kan. LEXIS 239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mahlandt-v-jabes-kan-1983.