Obscuring the drivers’ vision

Recently I shared a decision from the Coroners Court where a tree shading a streetlight contributed to a road death.  A recent case from Kansas has taken a different approach to the obligations of owners of trees.

It was mid-afternoon on 14 September 2011, and Darren Manley was driving north on Anderson Road in Labette County, Kansas.  At the same time a truck driven by John Patton was being driven west on the intersecting County Road 20000.  Trees growing on land adjoining the intersection obscured the drivers’ view of each other.  Manley was killed in the resulting collision.

Rural road, Labette County, KS (Image from here)

Mr Manley’s estate sued the owners of the land where the trees grew.  It was alleged that they had wrongfully caused his death by allowing the trees to obstruct the vision of passing motorists.  The owners sought summary dismissal of the claim which was granted by Labette County District Court.  The plaintiff’s appeal to the Court of Appeals was also dismissed: Manley v Hallbauer, 387 P. 3d 185 (2016).  They further appealed to the Supreme Court of Kansas.

The Supreme Court rejected the appeal, finding that the landowners had no duty of care.  It noted that any duty of care would need to be consistent with public policy.  Kansas common law reflected a public policy not to impose tort liability on persons in the position of the landowners in this case.

As our primary policy consideration, this court adheres to precedent “‘unless clearly convinced that the rule was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from precedent.'” …. Manley does not persuade us to abandon the traditional rule that a landowner owes no duty in the circumstances of this case. We conclude the determination of the existence of duty is better resolved by following our precedent that embraces the traditional rule, especially because of the public policy that underlies that rule.

The Court duly concluded that “a landowner whose property abuts a rural intersection owes no duty to passing drivers to trim or remove trees or other vegetation on the property”.

Manley v Hallbauer (Supreme Court of Kansas, 10 August 2018)

Biery v United States (2014) H&FLR 2014-27

Dorothy L Biery and Ors v United States (2014) H&FLR 2014-27

United States Court of Appeals (Federal Circuit)

4 June 2014

Coram: Prost CJ, Schall and O’Malley JJ

Appearing for the Plaintiffs (Appellants): Mark F Hearne, Meghan S Largent, Lindsay SC Brinton, Stephen S Davis and Debra J. Albin-Riley (all of Arent Fox LLP) .
Appearing for the Defendant (Respondent): Nina Robertson (US Dept of Justice) and Robert G Dreher (Acting Assistant Attorney-General)

Catchwords: Kansas – real property – rails to trails – taking – deeds – National Trail Systems Act – fee simple – right-of-way – easement

Facts: The plaintiffs were landowners in Kansas whose properties abutted a rail corridor. The corridor was the subject of various deeds granted by the landowners’ predecessors in favour of a series of operators of the railway. The railway operator abandoned its interest in the rail corridor, which was converted into a recreational trail under the National Trail Systems Act.

The plaintiffs alleged that the conversion of the rail corridor was a taking (or compulsory acquisition) of their property interests and sought compensation. The proceeding was dismissed on the basis that the plaintiffs held no fee-simple interests that could be the subject of a taking*. Their claims were dismissed**. The plaintiffs appealed.

Held: per curiam, upholding the appeal in part and dismissing it in part –

1. State law controls the nature and scope of a property interest in a rail corridor.

Preseault v United States, 100 F. 3d 1525 (Fed. Cir., 1996), followed.

2. In Kansas law, railway operators do not take fee-simple ownership of narrow strips of land taken as rights-of-way.

Harvest Queen Mill & Elevator Co v Sanders, 370 P.2d 419 (Kan., 1962).

3. A deed which directly or indirectly describes or refers to the land’s use or purpose as a right-of-way is considered to have granted an easement. However, where a deed to a railway operator contains no restrictions, reversionary clause or other indications that it is solely for a right of way, the title will be considered to have been granted in fee simple.

Stone v USD No. 222, 91 P.3d 1194 (Kan., 2004) followed.


The Court’s judgment is available here.


* Biery v United States (Court of Federal Claims, 20 August 2009, unreported).

** Biery v United States (Court of Federal Claims, 9 April 2013, unreported)