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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.

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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.

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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. 3

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 15foot 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.

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"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. 6

Thus, the chain of title for Lots 2, 3, and 4 can be represented as follows:

Lot 2: Nashes

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