1

No. 126,102

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

SHAWN DROUHARD,

Appellee,

v.

CITY OF ARGONIA,

Appellant.

SYLLABUS BY THE COURT

1. 

An easement holder commits a trespass by exceeding the rights provided under the 

easement.

2. 

A plaintiff who proves trespass can recover for any loss sustained.

3. 

No set measure of damages is required for a trespass claim.

4.

When a district court fashions a remedy designed to make an injured party whole, 

an appellate court does not determine whether the remedy is the best remedy but 

considers whether the remedy fails to follow the applicable law or otherwise breaches 

judicial discretion.
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5. 

A plaintiff who fails to prove actual loss may recover nominal damages, but a 

plaintiff cannot recover both actual and nominal damages for the same claim. Nominal

damages are to be assessed in a trivial amount.

6. 

When an aggrieved landowner has clearly defined rights under an easement that 

are recognized and protected by law, the district court may grant an injunction without 

applying the traditional four-part balancing of equities test.

Appeal from Sumner District Court; GATEN T. WOOD, judge. Oral argument held March 5, 2024. 

Opinion filed May 17, 2024. Affirmed in part and reversed in part.

Robert Almanza, of Law Offices of Robert Almanza, of Argonia, for appellant.

Martin J. Peck, of Wellington, for appellee.

Before GARDNER, P.J., MALONE, J., and TIMOTHY G. LAHEY, S.J.

GARDNER, J.: This case asks whether the City of Argonia exceeded the scope of a 

water easement. Shawn Drouhard's father granted the City an easement to produce and 

transport water on his property by wells, pumps, and lines. The City used the water for 

years without incident until the City installed a water vending machine (the Water 

Salesman) on the easement property. Drouhard then tried to preclude third-party 

purchasers from using the Water Salesman by placing a car in front of it, but the City 

towed the car. Drouhard then sued the City for trespass and for two claims of 

conversion—for taking Drouhard's car and taking her underground water. The district 

court denied Drouhard's claim for conversion of water but granted summary judgment 

against the City for the conversion of her car and for trespass. The district court awarded 
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Drouhard actual and nominal damages for both claims and issued a permanent injunction 

based on the City's trespass. 

The City appeals the district court's orders granting Drouhard summary judgment 

on her trespass claim, awarding actual and nominal damages, and granting injunctive 

relief. Drouhard cross-appeals the district court's denial of her request to use a rental 

value approach in measuring her damages for the City's trespass. For the reasons 

explained below, we reverse the awards of nominal damages and affirm in all other 

respects.

FACTUAL AND PROCEDURAL BACKGROUND

In 2001 Shawn Drouhard's father granted the City of Argonia and its successors 

and assigns an easement to produce and transport water from Drouhard's property. The 

easement granted the City and "its successors or assigns" the right to "enter upon" 

Drouhard's property for these purposes: "to place, construct, operate, maintain, relocate 

and replace thereon, water wells, lines, pumps and appurtenances thereto, as shall be 

desirable for the production and transport of water on said property, together with the 

right of ingress and egress thereto." In exchange, Drouhard, his successors, and assigns 

received the right to use up to 10,000 gallons of city water per month without charge, as 

long as the City exercised its rights under the easement.

The City used the easement to pump water by using water lines from 2002 to 

2017, without incident. But in October 2017, the City installed the Water Salesman—a 

coin-operated machine used to pump and sell bulk amounts of untreated water directly to 

the public at the pump site. 

Members of the public used the Water Salesman from 2017 to 2019. Drouhard did 

not live on the easement property during that time but still saw big trucks hauling water 
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off her property. In 2019, Drouhard towed her inoperable car and placed it in the way of 

the Water Salesman to preclude purchasers from using it. Although Drouhard's car and 

property were outside city limits, the City issued her a parking ticket and had her car 

towed. Members of the public once again used the Water Salesman. 

In February 2020, Drouhard sued the City, the towing company, and other parties 

for trespass, conspiracy, aiding and abetting, and conversion. Drouhard's two conversion 

claims were based on the City's taking of her car and its taking of the underground water 

on her property. The towing company eventually waived impound and storage costs and 

returned Drouhard's car to her, so Drouhard withdrew her claims against that company 

and the district court dismissed it from this suit. 

The parties then cross-moved for summary judgment on the issue of liability on 

Drouhard's remaining claims of conversion and trespass. Drouhard argued that the 

uncontroverted facts showed that the City's installation and use of the Water Salesman 

exceeded the terms of the easement and constituted trespass. Analogizing the City's use 

of the easement to an oil and gas lease, Drouhard aptly argued "[w]hen a landowner signs 

an oil and gas lease permitting oil exploration and pumping, he does not thereby grant a

right to the lessee to operate a gas station . . . ." As for her conversion claim, Drouhard 

argued that the City lacked contractual authority to remove her car, and it lacked 

authority to ticket or tow her car because it was parked on her property outside city 

limits. 

The City argued that it was immune from prosecution for each claim, that the 

easement should be considered a blanket, rather than a specific, easement, and that the 

Water Salesman should be classified as a "pump, line[,] or well" permitted in the 

easement. The City argued against Drouhard's conversion claims as well. 
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Summary Judgment on Liability

The district court summarily denied Drouhard's claim of conversion of the water 

but granted her summary judgment on her claims of conversion of her car, and trespass. 

As for the trespass claim, the district court found that the City's installation and use of the 

Water Salesman exceeded the permissible scope of the easement so was trespassory. The 

district court granted Drouhard temporary injunctive relief barring use of the Water 

Salesman and ordered the City to file a complete accounting of all sales by the Water 

Salesman for purposes of determining damages at a later hearing. 

As for conversion of Drouhard's car, the district court denied the City's claim of 

immunity. It found the City had improperly ordered law enforcement to cite Drouhard for 

illegal parking because the property on which the car sat was outside city limits. The 

district court likewise found the City had improperly directed the towing company to 

remove the car from Drouhard's property. 

Trial on Damages

Drouhard did not present expert testimony at trial but relied on her own testimony 

to establish damages for both her conversion and trespass claims. For the conversion 

claim, the district court found that the fair market value of the car was $4,000 when 

towed and $500 when returned, so it awarded actual damages of $3,500 for the City's 

conversion. It also awarded nominal damages of $2.50 per day for the 1,034 days that 

Drouhard did not have the car, totaling $2,585 for lost use, non-access, and possible 

"damages" and repair. 

For the trespass claim, the district court awarded Drouhard actual damages of 

$1,481.60. The district court also awarded nominal damages for trespass at $2.50 per day 
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for 1,385 days, totaling $3,462.50, and it ordered a permanent injunction barring use of 

the Water Salesman. The City moved to reconsider, which the district court denied. 

The City does not appeal the district court's grant of summary judgment on 

Drouhard's conversion claim. The City timely appeals the district court's summary 

judgment ruling on liability for Drouhard's trespass claim, its damages awards for 

conversion and trespass, and its grant of injunctive relief. Drouhard cross-appeals, 

alleging the district court erred by denying her request to base trespass damages on rental 

value. 

I. THE DISTRICT COURT CORRECTLY GRANTED DROUHARD PARTIAL SUMMARY 

JUDGMENT ON HER TRESPASS CLAIM.

The City first argues that the district court erred in finding it liable for trespass.

Basic Legal Principles

This court's standard of review on summary judgment is well known:

"'Summary judgment is appropriate when the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, show that there is no 

genuine issue as to any material fact and that the moving party is entitled to judgment as 

a matter of law. The trial court is required to resolve all facts and inferences which may 

reasonably be drawn from the evidence in favor of the party against whom the ruling is 

sought. When opposing a motion for summary judgment, an adverse party must come 

forward with evidence to establish a dispute as to a material fact. In order to preclude 

summary judgment, the facts subject to the dispute must be material to the conclusive 

issues in the case.'" Schreiner v. Hodge, 315 Kan. 25, 30, 504 P.3d 410 (2022). 
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"Appellate courts apply the same rules. And if the reviewing court determines reasonable 

minds could differ as to the conclusions to be drawn from the evidence, it must deny 

summary judgment. [Citation omitted.]" Unruh v. Wichita, 318 Kan. 12, 19, 540 P.3d 

1002 (2024). 

In considering whether the district court's grant of summary judgment—or, as 

here, partial summary judgment—was appropriate, this court considers the evidence 

before the district court at the time the court granted the motion. See Antrim, Piper, 

Wenger, Inc. v. Lowe, 37 Kan. App. 2d 932, 939-40, 159 P.3d 215 (2007). Here, the 

parties do not dispute the governing facts. Rather, their dispute is whether the district 

court properly applied the law of trespass. "Appellate review of the legal effect of 

undisputed facts is de novo. [Citation omitted.]" GFTLenexa, LLC v. City of Lenexa, 310 

Kan. 976, 981-82, 453 P.3d 304 (2019). 

"[A] trespass claim arises when a person intentionally enters another's property 

'without any right, lawful authority, or express or implied invitation or license.' 

Armstrong v. Bromley Quarry & Asphalt, Inc., 305 Kan. 16, 22, 378 P.3d 1090 (2016)." 

Ross v. Nelson, 63 Kan. App. 2d 634, 644, 534 P.3d 634 (2023). Trespass requires an 

"'intention to enter upon the particular piece of land in question, irrespective of whether 

the actor knows or should know that he is not entitled to enter.'" United Proteins, Inc. v. 

Farmland Industries, Inc., 259 Kan. 725, 730, 915 P.2d 80 (1996).

This dispute involves the scope of an easement. An easement holder commits a 

trespass by exceeding the rights provided under the easement. See TFMCOMM, Inc. v. 

Dultmeier Development Co., No. 95,515, 2006 WL 2443940, at *2-4 (Kan. App. 2006)

(unpublished opinion) (affirming district court's finding defendant trespassed where 

defendant intentionally built a structure on the plaintiff's property without express 

authority to do so under the parties' easement); see also 75 Am. Jur. 2d Trespass § 66. To 

determine the parties' rights under an easement, courts examine the language of the 
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easement and the extent of the dominant tenant's use of the easement when it was 

granted. Potter v. Northern Natural Gas Co., 201 Kan. 528, 531, 441 P.2d 802 (1968); 

Brown v. ConocoPhillips Pipeline Co., 47 Kan. App. 2d 26, 33, 271 P.3d 1269 (2012). 

Appellate courts exercise unlimited review over the interpretation and legal effect of 

written instruments, including whether a written instrument is ambiguous, and are not 

bound by the lower courts' interpretations or rulings. Trear v. Chamberlain, 308 Kan. 

932, 936, 425 P.3d 297 (2018). 

The easement is unambiguous.

The crucial language of this easement "expressly grants" to the City and "its 

successors and assigns" the right to "place, construct, operate, maintain, relocate and 

replace thereon water wells, lines, pumps and appurtenances thereto, as shall be desirable 

for the production and transport of water on said property, together with the right of 

ingress and egress thereto."

The City's overarching complaint is that the district court found the easement was 

unambiguous so it should have considered solely the language of the easement, yet it 

erroneously considered the City's past use of the easement (citing City of Arkansas City v. 

Bruton, 284 Kan. 815, 833-34, 166 P.3d 992 [2007]). But in Bruton, our Supreme Court 

noted the general rule that a court should consider the parties' use of an easement when 

discerning the parties' rights under the easement. See also Brown, 47 Kan. App. 2d at 33 

("Courts determine the character and extent of each parties' rights under the easement by 

examining the language of the grant and the extent of the dominant tenant's use of the 

easement at the time it was granted. Cunning, 37 Kan. App. 2d at 812."). The City 

focuses instead on Bruton's emphasis of the well-established rule that "if a written 

instrument has clear language and can be carried out as written, rules of construction are 

not necessary. [Citations omitted.]" 284 Kan. at 829.
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We need not decide whether the district court erred in its analysis. Our de novo 

review of the easement is unaffected by the lower courts' interpretations or rulings. 

Russell v. Treanor Investments L.L.C., 311 Kan. 675, 680, 466 P.3d 481 (2020). We find 

the easement unambiguous and confine our review to the plain meaning of its language. 

See 311 Kan. at 680 ("'If the terms of the contract are clear, the intent of the parties is to 

be determined from the language of the contract without applying rules of 

construction.'").

The Water Salesman is a pump.

To win her motion for partial summary judgment on her trespass claim, 

Drouhard had to prove that the City's addition and use of the Water Salesman to 

her property exceeded the scope of its rights under the easement. See Ross, 63 

Kan. App. 2d at 643 (trespass is intentional entering of another property "without 

any right, lawful authority, or express or implied invitation or license"); cf.

Bruton, 284 Kan. at 833-34 (trespass claim required proof that improvements to a 

dike did not constitute maintenance in accordance with specific plan requirements 

defined in the easement and express purpose of the easement). 

Because the easement allows the City to "place" or "construct" certain waterrelated parts on Drouhard's property, we first ask whether the Water Salesman constitutes 

one of the "wells, lines, pumps[,] [or] appurtenances" permitted by the easement. The 

City notes Drouhard's admission in her statement of uncontroverted facts that the Water 

Salesman is a "pump." There, Drouhard describes the Water Salesman as a point-of-sale 

pump, describing the machine as "a water pump that pumps water when people insert 

money into it. A person inserts $3 to start the pump and for every quarter you insert into 

it, it continues to fill." A "pump" is generally broadly defined as "any of various 

machines that force a liquid or gas into or through, or draw it out of, something, as by 

suction or pressure." Webster's New World College Dictionary 1179 (5th ed. 2014). 
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Based on Drouhard's admission and the broad definition of a pump, we find the Water 

Salesman is a pump as that term is used in the City's easement. Cf. Bruton, 284 Kan. at 

846 (concluding that various definitions were broad enough to encompass the 

improvements that a city made to a dike within the maintenance provision of the parties' 

easement). We need not determine whether use of the pump solely by the City would 

have violated the scope of the easement, since the facts show that the Water Salesman 

was designed for public use and was used solely by the public. 

Water Salesman users are not the City, its successors, or assigns.

We next ask whether the easement gives the City the right to permit the public to 

access and use the Water Salesman. The easement specifies that the only parties 

authorized to use the easement are the City and its "successors or assigns," yet the record 

shows that members of the public used the Water Salesman. And the City did not argue 

to the district court that it alone used the Water Salesman, or that the persons who did so 

were its successors or assigns. The City admitted in the district court that it did not have 

"any contracts" with persons who used the Water Salesman, and that it did not know any 

person who had bought water from the Water Salesman. And on appeal, the City admits 

that the easement is exclusive and it does not contend that the persons who purchased 

water from the Water Salesman were its successors or assigns. 

Instead, the City invites us to find that the exclusive easement nonetheless gives 

the City the authority to grant "third-party access" to the Water Salesman to transport 

water. It argues that exclusive easements can be apportioned to others if doing so does 

not materially alter the scope of the easement. In support, the City references two state 

court decisions from other jurisdictions—Ex parte Lightwave Technologies, L.L.C., 971 

So. 2d 712, 715 (Ala. 2007), and Hemmelgarn v. Huelskamp & Sons, Inc., 138 N.E.3d 

1199, 1209 (Ohio Ct. App. 2019).
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But the first case teaches that where an easement is created by conveyance, 

"'apportionability depends upon the intention of the parties to the conveyance.'" Ex parte 

Lightwave Techs., LLC, 971 So. 2d 712, 716-17 (Ala. 2007). Under that principle, an 

express easement may be apportioned when two conditions are met: (1) the language in 

the document creating the easement conveys an intention to convey or to grant the right 

to apportion; and (2) the apportionment is not an additional servitude. Lightwave 

Technologies, 971 So. 2d at 717. The City points to no such language in its easement 

granted by Drouhard and we find none. 

The second case cited is broader, citing several Ohio courts finding that an 

easement holder may grant use of the easement to guests and invitees as long as their 

access and use remains reasonable and does not unduly burden the land on which the 

easement is located. Hemmelgarn, 138 N.E.3d 1199. But that court found it persuasive 

"that the easement language contained in the deed does not grant exclusive or limited use 

of the easement to the easement holders," and that the evidence showed that the third 

parties' use of the easement adhered to the overall purpose of the easement. 138 N.E.3d at 

1209. By contrast, the easement here is exclusive and expressly permits only the City and 

its successors or assigns the right to use it. Successors or assigns are different, legally 

speaking, from guests or invitees. See Black's Law Dictionary 147 (11th ed. 2019) 

(defining "assignee" as "[s]omeone to whom property rights or powers are transferred by 

another"). And the City points to no evidence that the public's purchase of water from the 

Water Salesman adhered to the overall purpose of the easement. Thus we are 

unpersuaded to adopt and apply Hemmelgarn's broad standard here.

The City's open invitation to third parties to use the Water Salesman rendered the 

City liable for the trespass its invitation caused. We reach this conclusion by a plain 

reading of the unambiguous easement. The City exceeded the scope of the easement by 

installing the Water Salesman and by inviting and enabling non-successors and nonassignees to use it.
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The material interference rule for obstruction of easements does not apply.

The City also asserts that Drouhard's trespass claim requires proof that the City's 

new or additional use of the easement materially increased or created a new or additional 

burden on the servient estate. The City points out that the district court did not make such 

a finding and claims that this is reversible error (citing Aladdin Petroleum Corporation v. 

Gold Crown Properties, 221 Kan. 579, 588, 561 P.2d 818 [1977]). But as that case 

clarifies, this theory has no application here.

The rule of law that the City relies on applies when a servient tenant obstructs or 

disturbs the dominant tenant's easement:

"28 C.J.S. Easements s 96, pp. 778-779, discusses what constitutes an obstruction:

'An obstruction or disturbance of an easement is anything which 

wrongfully interferes with the privilege to which the owner of the easement is 

entitled by making its use less convenient and beneficial than before. To 

constitute an actionable wrong it must, however, be of a material character such 

as will interfere with the reasonable enjoyment of the easement . . . .'" Aladdin, 

221 Kan. at 588.

The City is the owner or holder of the easement, or the dominant tenant. Drouhard, 

the landowner, is the servient tenant. Potter, 201 Kan. at 530-31.

"An obstruction or disturbance of an easement is something that wrongfully interferes 

with the privilege to which the dominant tenant is entitled by making its use of the 

easement less convenient and beneficial. Mid-America Pipeline Co. v. Wietharn, 246 

Kan. 238, 243, 787 P.2d 716 (1990). However, an obstruction or disturbance of an 

easement is not actionable unless it is of such a material character as to interfere with the 

dominant tenant's reasonable enjoyment of the easement. Aladdin Petroleum Corporation 

v. Gold Crown Properties, Inc., 221 Kan. 579, 588, 561 P.2d 818 (1977)." Brown, 47 

Kan. App. 2d at 33.
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The requirement of a "material" interference with the City's "reasonable" enjoyment of 

the easement has no application here because the City never claimed that Drouhard 

wrongfully interfered with the City's privilege under the easement.

Drouhard, the servient tenant, had no need to show the City materially interfered 

with her servient estate to prove trespass. For trespass, "the mere breaking and entering 

gives rise to a cause of action." McMullen v. Jennings, 141 Kan. 420, 426, 41 P.2d 753

(1935). Based on the undisputed facts, we agree that the City is liable for trespass for 

directly causing individuals not named in the easement to enter Drouhard's property. 

II. THE DISTRICT COURT DID NOT ERR IN ITS ACTUAL DAMAGES AWARD FOR 

TRESPASS.

The City next challenges the damages, both actual and nominal, that the district 

court awarded on Drouhard's trespass claim. The district court awarded Drouhard 

$1,481.60 in actual damages and $3,462.50 ($2.50 per day for 1,385 days) in nominal 

damages. 

Actual Damages Principles

When calculating damages for a trespass, the general rule is that a plaintiff can 

recover for any loss sustained. Mackey v. Board of County Commissioners, 185 Kan. 139, 

147, 341 P.2d 1050 (1959) (in trespass action, "wrongdoer should compensate for all the 

injury naturally and fairly resulting from [the] wrong"); see also 87 C.J.S., Trespass § 116 

("The measure of damages in trespass actions is the sum that will compensate the person 

injured for the loss sustained."); Restatement (Second) of Torts § 929 (1979) (available 

damages include loss in value or in certain cases, the plaintiff may elect cost of 

restoration). See Ross, 63 Kan. App. 2d at 652.
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To recover damages, there must be a reasonable basis for computation that allows 

a fact-finder to make an approximate estimate of the damages. Claims for damages that 

are conjectural and speculative cannot form a sound basis for an award. See Peterson v. 

Ferrell, 302 Kan. 99, 106-07, 349 P.3d 1269 (2015). Yet appellate courts do not reweigh 

evidence or pass upon the credibility of witnesses. When deciding whether the evidence 

is not enough to support a claim of damages because it is too conjectural or speculative, 

appellate courts examine the evidence in a light most favorable to the prevailing party. 

302 Kan. at 106-07.

Sufficient Evidence of Actual Damages for Trespass

The City accurately notes that at the hearing on damages, Drouhard presented two 

forms of evidence to support her request: (1) proffered evidence about the rental value of 

a storage shed that she kept on her property and rented a portion of to her cousin; and (2) 

an accounting of the sales from the Water Salesman. The district court rejected 

Drouhard's proffer, finding the rental value approach factually inapplicable. But the 

district court adopted the values provided in Drouhard's accounting of the water sales to 

measure actual damages.

The City first challenges Drouhard's facts as insufficient and untrustworthy. But 

the evidence that Drouhard presented on her claim for damages was uncontradicted. 

Generally, uncontradicted evidence that is not improbable or unreasonable cannot be 

disregarded unless it is shown to be untrustworthy, and such uncontradicted evidence 

should ordinarily be regarded as conclusive. Home Life Ins. Co. v. Clay, 13 Kan. App. 2d 

435, Syl. ¶ 3, 773 P.2d 666 (1989). Although Drouhard provided little evidence to 

support her claim, nothing suggests that Drouhard's accounting information was 

unreliable, since it was based on the City's own records of water sales by the Water 

Salesman through December 2021. Sufficient evidence thus supports the figures the 

district court used for its award of actual damages. 
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Drouhard adequately proved her loss. She testified that the City's trespass deprived 

her of the peaceful enjoyment of her property, as preserved to her in the easement. 

Drouhard proved her annoyance and discomfort. She testified that the wellhouse is next 

to her house. And although she did not live on that property, she saw strangers use the 

wellhouse 11 or 12 times when she was on her property working on the house to make it 

livable. She did not like strangers being so close to her house and pulling into her private 

driveway to use the Water Salesman:

"I apologize if this sounds persnickety. It's not supposed to be. But for the public 

to approach this wellhouse, they have to pull into my private driveway that is not part of 

the easement. Now, do I care if the City uses that public driveway? Absolutely not. 

Because I am not persnickety. But they still have to cross my private driveway. And I 

don't appreciate strangers being within a football field from my windows, because I've 

caught strangers at my window before."

All but one of the persons whom Drouhard saw use the Water Salesman were 

strangers to her, and they came and went on her property without limitation. And when 

identifying Exhibits 7 and 8 as photos of a stranger's truck with a big water tank on her 

property, Drouhard volunteered, "I was very upset." Drouhard also testified that she "put 

up a cease and desist letter, also, because the City was . . . inviting the public on my 

property. And I said—and I complained quite often—why you were not following the 

easement."

Drouhard's act of moving her car in front of the Water Salesman provides 

additional circumstantial evidence of her annoyance and discomfort. She placed the car in 

front of the Water Salesman on purpose, to make it less convenient to access. And after 

the City towed that car, Drouhard asked the towing company to return her car to that 

same place, yet the towing company returned the car to a location where it did not block 

the wellhouse. 
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The evidence meets Drouhard's burden to prove by a preponderance of the

evidence that she was damaged by trespass from strangers repeatedly entering her 

property without her consent. Actual damages for trespass were warranted.

Correct Measure of Damages for Trespass

The City also contends that the district court committed legal error by using an 

incorrect measure of damages. Appellate courts examine the correct measure of damages 

de novo, viewing the record in the light most favorable to the prevailing party. Ferrell, 

302 Kan. at 106-07. The City contends that the district court should have used the 

difference between the fair market value of the property before and after the trespass. See 

Crawford v. Frazee, 144 Kan. 278, 282, 58 P.2d 1141 (1936); Miller v. Cudahy Co., 858 

F.2d 1449, 1456 (10th Cir. 1988) (explaining measure of damages for a temporary injury 

to real property in Kansas is the reasonable cost of repairing the property, including the 

value of the loss of use of the property, or the diminution of the rental value of the 

property).

But Drouhard did not allege any injury to her real property because of the City's 

installation or the public's use of the Water Salesman, which would have made this 

measure of damages appropriate. As the time-honored case of Chicago, K. & W. R. Co. v. 

Willets, 45 Kan. 110, 114, 25 P. 576 (1891), held: 

"'In actions for injury to real property, where the injury is done to the realty itself, 

the measure of damages is the difference in the value of the land before and after the 

trespass, or in some cases the amount necessary to restore the property to the condition in 

which it was before the trespass was committed.'" (Emphasis added.) 

Yet, in a trespass action, that measure of damages is not always required. See Mackey, 

185 Kan. at 147. 
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Still, the measure of damages was unusual for a trespass claim. The actual 

damages for trespass were in the same amount that the City had earned by selling water 

to the public from the Water Salesman. Awarding damages in the same amount as the 

benefit the Water Salesman conferred on the City seems more appropriate for a claim of 

unjust enrichment than trespass. See Hurtig v. Mattox, No. 117,544, 2017 WL 6542803, 

at *8 (Kan. App. 2017) (unpublished opinion) (the measure of damages in a claim of 

unjust enrichment focuses upon the amount of benefit to the defendant which would be 

unjustly retained); In re WorldCom, Inc., 320 B.R. 772, 781 (Bankr. S.D.N.Y. 2005) 

(applying Kansas precedent in finding a defendant's benefit from trespass is not relevant 

when measuring damages suffered by the plaintiff), aff'd 339 B.R. 836 (S.D.N.Y. 2006), 

aff'd 546 F.3d 211 (2d Cir. 2008). 

But there is no set measure of damages for a trespass claim. The general rule for 

calculating damages for trespass is that a plaintiff can recover for any loss sustained. The 

"'wrongdoer should compensate for all the injury naturally and fairly resulting from [the] 

wrong.'" Armstrong v. Bromley Quarry & Asphalt, Inc., 305 Kan. 16, 35, 378 P.3d 1090

(2016) (quoting Mackey, 185 Kan. at 147). Thus, in Ross, 63 Kan. App. 2d at 651-52, our 

court recently found no error in using the "cost of removal" as the measure of damages 

for trespass when Nelson trespassed by installing pipes in the right-of-way and the cost of 

removing the pipes was the only evidence of damages presented at trial. 

As in Ross, the district court here tailored the measure of damages to the facts 

before it. The City trespassed by installing the Water Salesman and inviting the public to 

use it. Drouhard saw trucks taking water off her property and was upset by strangers 

using her property. Yet no evidence showed how often or to what extent third parties had 

trespassed on Drouhard's land other than the City's records of the times users had bought 

water from the Water Salesman. The district court thus used that amount to compensate 

Drouhard for the injury naturally and fairly resulting to her from the City's wrong. The 

court awarded the funds from the Water Salesman as actual damages to compensate 
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Drouhard for her loss based on the number of times that strangers had trespassed on her 

property, not to prevent the City from being unjustly enriched. This distinguishes this 

award from the typical unjust enrichment award, although it is in the same amount.

When, as here, a district court fashions a remedy designed to make an injured 

party whole, an appellate court does not determine whether the remedy is the best remedy 

but considers whether the remedy fails to follow the applicable law or otherwise breaches

judicial discretion. Ferrell, 302 Kan. at 106. See In re Conservatorship of Huerta, 273 

Kan. 97, 99-100, 41 P.3d 814 (2002) (quoting Gillespie v. Seymour, 250 Kan. 123, Syl. 

¶ 10, 823 P.2d 782 [1991]). Under the unusual circumstances noted by the district court, 

we find no error of law in the measure of actual damages for the City's trespass.

III. THE DISTRICT COURT PROPERLY DENIED DROUHARD'S REQUEST FOR RENTAL 

VALUE AS THE MEASURE OF TRESPASS DAMAGES.

We detour to address Drouhard's cross-appeal because it also alleges that the 

district court erred in its measure of actual damages for trespass. She contends that her 

actual damages for trespass should be $2,400 per year based on the fair rental value of the 

shed that housed the Water Salesman. We choose to address this issue on its merits, 

overlooking the procedural deficiencies of Drouhard's brief noted by the City.

Drouhard first relies on K.S.A. 58-2520, which states that an "occupant without 

special contract, of any lands, shall be liable for the rent to any person entitled thereto." 

Drouhard then summarily claims that "[a]n occupant without a contract would include a 

trespasser like the City," thus the City is liable for rent. But Drouhard did not make any 

argument under this statute to the district court, so this claim is unpreserved. 

And this argument fails on its merits as well. This statute is part of the Residential 

Landlord and Tenant Act, so likely relates to tenancy at sufferance or hold-over tenants, 
19

unlike the City. As an easement holder, the City is not an occupant or tenant as defined in 

the Act and does not pay "rent" to Drouhard. See K.S.A. 58-2543(o) (defining "'[t]enant'"

as "a person entitled under a rental agreement to occupy a dwelling unit to the exclusion 

of others"); K.S.A. 58-2543(j) (defining "'[r]ent'" as "all payments to be made to the 

landlord under the rental agreement, other than the security deposit"; (k) (defining 

"'[r]ental agreement'" as "the terms and conditions concerning the use and occupancy of a 

dwelling unit and premise"). This statute does not apply to this easement case. 

But Drouhard also relies more generally on tort law (citing Gross v. Capital Elec. 

Line Builders, Inc., 253 Kan. 798, 805, 861 P.2d 1326 [1993]). That case cites the general 

rule that "'"the measure of damages for wrongfully depriving the plaintiff of the use of his 

property is the rental value or the reasonable rental value of the use of the property during 

the time he is deprived thereof." (52 American Jurisprudence, 874, Section 49.)'" 253 

Kan. at 803-05. The City properly distinguishes this case, emphasizing that Gross did not 

deal with excessive use of an easement. We add that the court in Gross based its 

determination on the "extent of the trespass" and facts significantly different than ours. 

253 Kan. at 805. Drouhard did not live on the property when the public used her 

driveway to access the Water Salesman, and she did not allege that the public's use of the 

Water Salesman barred her from using her property.

Drouhard cites two other opinions affirming awards based on fair rental value. 

McCullough v. Lukens, No. 61,663, unpublished opinion filed July 8, 1988 (Kan.);

Farmers State Bank v. Randall, No. 79,487, 1999 WL 35814176 (Kan. App. 1999) 

(unpublished opinion). Yet Drouhard fails to show us that these are easement cases or 

that they find that the measure of damages in an easement case must be based on rental 

value. These cases do not persuade us that the district court should have used rental value 

as its measure of damages.
20

The district court aptly explained why it rejected Drouhard's proposal to use rental 

value to measure damages for trespass. It reasoned that (1) the Water Salesman was 

attached to the wall of a preexisting structure on the easement and did not use any more 

footage than that permitted by the easement; and (2) the Water Salesman, per the City's 

accounting, was used only 44 times, a "far cry" from the consistent use of one's shed to 

store property. These are good reasons not to use rental value as the measure of damages.

Although Drouhard's testimony on the fair rental value of the City's "expanded use 

of the easement" was uncontradicted, we disagree that this had to be the measure of 

damages. Had Drouhard proved that the installation of the Water Salesman required a 

greater footprint than did the easement, or that the shed housing the Water Salesman had 

not been previously constructed to hold the equipment necessary for the City's proper use 

of the easement, or that the installation or use of the Water Salesman otherwise deprived 

Drouhard of the use of her property, rental value may have been the most appropriate 

measure of damages. But based on the uncontroverted facts, we cannot find that the 

district court's consistent refusal to use this measure of damages fails to follow the 

applicable law or otherwise breaches judicial discretion. Ferrell, 302 Kan. at 106. We 

thus deny Drouhard's cross-appeal.

IV. THE DISTRICT COURT ERRED BY AWARDING NOMINAL DAMAGES FOR TRESPASS.

We return to the City's appeal. The City next claims that the district court's 

"nominal damages" award for trespass is not nominal but compensatory, as shown by the 

district court's statements when granting the award. It also claims that the award is 

excessive and disproportionate to the amount of actual damages, as the district court 

awarded nominal damages of $2.50 a day for 1,385 days, totaling $3,462.50, for the 

City's trespass, while its actual damages award for that same claim was $1,481.60.
21

"From every direct invasion of the person or property of another, the law infers 

some damage, without proof of actual injury." Longenecker v. Zimmerman, 175 Kan. 

719, 721, 267 P.2d 543 (1954). Thus a trespass plaintiff who can show no actual loss may 

still recover nominal damages. Gross, 253 Kan. at 800. This is true even if the plaintiff 

benefitted from the defendant's act. But nominal damages are not a measure of damages 

suffered by a party. "Nominal damages, as opposed to pecuniary damages, are awarded 

when the plaintiff's evidence fails to show an actual monetary amount of loss, even 

though there has been a real injury or technical violation of a legal right." Newton v. 

Am.'s Tele-Network Corp., No. 84,575, 2000 WL 36746640, at *2 (Kan. App. 2000)

(unpublished opinion); Meinhart v. Farmers State Bank, 124 Kan. 333, 338, 259 P. 698 

(1927). This is underscored by the definition of the term "nominal damages":

"A trifling sum awarded when a legal injury is suffered but there is no substantial loss or 

injury to be compensated.

. . . .

"'Nominal damages are awarded if the plaintiff establishes a breach of contract or a tort of 

the kind that is said to be "actionable per se" but fails to establish a loss caused by the 

wrong.' . . . S.M. Waddams, The Law of Damages 477-78 (3d ed. 1997)." Black's Law 

Dictionary 490-91 (11th ed. 2018).

So nominal damages are appropriate only when a plaintiff fails to prove actual damages. 

Drouhard proved actual loss yet shows us no case holding that a plaintiff may receive 

both actual and nominal damages for the same claim. 

We also agree with the City that the district court's award of $3,462.50 is not 

nominal in amount. Nominal damages are to be assessed in a trivial amount. "While 

nominal damages are awarded without proof of actual injury, they imply the smallest 

appreciable quantity, with one dollar being the amount frequently awarded. [Citations 

omitted.]" Kraisinger v. Liggett, 3 Kan. App. 2d 235, 238, 592 P.2d 477 (1979). We are 

guided by our courts finding nominal damages in the amount of $200 excessive:
22

"We have stated that '[nominal damages] imply the smallest appreciable quantity 

. . . with one dollar being the amount frequently awarded.' Kraisinger v. Liggett, 3 Kan. 

App. 2d 235, 238, 592 P.2d 477, rev. denied 226 Kan. 792 (1979). Because there was no 

credible evidence of actual damages produced at trial, defendants were entitled to recover 

only nominal damages. The amount of $200 is not nominal. We therefore reverse the 

judgment of the trial court and remand with directions to enter a judgment for the 

defendant in the amount of one dollar in nominal damages." Amoco Production Company

v. Morgan, No. 65,117, 1990 WL 10859473, at *3 (Kan. App. 1990) (unpublished 

opinion).

See Utah Animal Rights Coalition v. Salt Lake City Corp., 371 F.3d 1248, 1264-65 (10th 

Cir. 2004) (McConnell, J., concurring) ("'Nominal damages are damages in name only, 

trivial sums such as six cents or $1.' Dan B. Dobbs, Dobbs Law of Remedies § 3.3[2], at 

294 [2d ed.1993].").

We also agree that the district court's statements as to how it determined the 

amount of nominal damages show that it made this award to compensate Drouhard for 

her losses. The district court based the amount on Drouhard's damages for the City's 

"use" and "invitation" of third parties to use the Water Salesman. Such damages are not 

nominal, but compensatory or actual, as the City argues. Because Drouhard proved actual 

damages, she is not entitled to nominal damages in the amount awarded. We thus reverse

the award of nominal damages for the City's trespass.

V. THE DISTRICT COURT DID NOT ERR BY GRANTING ACTUAL DAMAGES FOR THE 

CITY'S CONVERSION.

The City next challenges the court's actual and nominal damages awards for the 

City's conversion, attacking the sufficiency and accuracy of Drouhard's testimony on the 

fair market value of her car. 
23

Standard of Review & Basic Legal Principles 

"Conversion is the 'unauthorized assumption or exercise of the right of ownership 

over goods or personal chattels belonging to another to the exclusion of the other's rights.' 

Damages are ordinarily the property's value when converted plus interest. [Citations 

omitted.]" Armstrong, 305 Kan. at 22.

"The purpose of awarding damages to an injured party is to make that party whole 

by restoring the party to his or her position before the injury." Evenson v. Lilley, 295 Kan. 

43, 46, 282 P.3d 610 (2012). Generally, courts have measured damages for conversion by 

using the "'before-and-after rule.'" 295 Kan. at 47. "Under Kansas law, the general rule is 

that the measure of damages based upon a claim for conversion is the fair and reasonable 

market value of the property converted at the time of the conversion. Mohr v. State Bank 

of Stanley, 241 Kan. 42, 55, 734 P.2d 1071 (1987)." Millennium Fin. Services, LLC v. 

Thole, 31 Kan. App. 2d 798, 809, 74 P.3d 57 (2003). 

Appellate courts apply a de novo review of the district court's legal conclusion, but 

we review underlying factual findings not based on stipulations or documentary evidence 

for substantial competent evidence. See Evenson, 295 Kan. at 46. "When examining 

whether the evidence is insufficient to support a claim of damages because it is too 

conjectural or speculative, we examine the record in the light most favorable to the 

prevailing party." Ferrell, 302 Kan. at 107. 

Evidence of Actual Damages for Conversion 

The City alleges that Drouhard was unqualified to estimate the fair market value 

of her car, was unreasonably uninformed, and improperly calculated the car's 

depreciation, thus the district court acted unreasonably in accepting her proposed values. 
24

The district court measured the damages caused by the City's conversion by using 

the difference between the fair market value of Drouhard's car when taken and when 

returned. 

"The fair market value of converted or stolen property generally means that 

amount that would be paid in cash by a willing buyer who desires to buy, but is not 

required to buy, to a willing seller who desires to sell but does not need to sell. See State 

v. Hall, 297 Kan. 709, 713, 304 P.3d 677 (2013) ('The fair market value of inventory is 

the price that a willing seller and a willing buyer would agree upon in an arm's lengthtransaction.')." Ringneck Farms LLC v. Steuwe, No. 121,879, 2020 WL 5268234, at *12

(Kan. App. 2020) (unpublished opinion). 

Drouhard, as the moving party, had the burden to prove damages. Cerretti v. Flint 

Hills Rural Elec. Co-op. Ass'n, 251 Kan. 347, 362, 837 P.2d 330 (1992). She sought to 

meet this burden by testifying to the value of the car. An owner may testify to the amount 

paid for a property. See Ultimate Chem. Co. v. Surface Transp. Int'l, Inc., 232 Kan. 727, 

729-30, 658 P.2d 1008 (1983); In re Tax Appeal of Lipson, 44 Kan. App. 2d 515, 522, 

238 P.3d 757 (2010). A property owner may also testify about the fair market value of 

their property based on their familiarity with the property and the values in the 

neighborhood. See Doug Garber Construction, Inc. v. King, 305 Kan. 785, 789, 388 P.3d 

78 (2017). 

Drouhard testified extensively to the condition of her car. She owned the car, had 

bought it for $3,800, and she spent around $500 on replacement parts for it shortly after 

she bought it. Drouhard estimated that the car was worth around $4,000 when the City 

had it towed. But she admitted that she had not used any formal method of valuing the car 

and did not know how she arrived at that price. Drouhard testified that she offered to sell 

the car for $500 after the towing company returned it, but her offer was rejected, and she 

did not offer to sell it for a lower amount. She later rejected an offer of $100 for the car. 
25

The City notes that despite having had the car for around eight years, Drouhard 

did not know how many miles the car had. She explained, however, that she did not drive 

the car for very long—just three weeks—before it started to have mechanical issues. She 

also could not describe the state of the interior of the car after it was returned. She chose 

not to look inside but she knew that the car must have been stored outside with its 

windows down, given its apparently diminished state. Based on this testimony, the 

district court adopted Drouhard's valuations of $4,000 when it was towed and $500 when 

it was returned and awarded the difference—$3,500—as damages. 

Drouhard's testimony could have been more informed and was "less than 

brimming with detail." State v. Pullins, No. 106,527, 2012 WL 4121116, at *2 (Kan. 

App. 2012) (unpublished opinion). Still, Drouhard's testimony was facially reasonable 

and was unrebutted, and related to the appropriate measure of damages. The City towed 

her car although it was on her own property and stored it outside with its windows down 

for 2 years and 10 months before having it returned to Drouhard. Her testimony suggests 

that her car sustained significant damage at the storage facility. Viewing the record in the 

light most favorable to Drouhard, we find her testimony provided a reasonable basis for 

computation which enabled the district court to arrive at an approximate estimate of her 

actual damages for the City's conversion of her car. See Stewart v. Cunningham, 219 

Kan. 374, 381, 548 P.2d 740 (1976). No more is necessary.

V. THE DISTRICT COURT ERRED BY AWARDING NOMINAL DAMAGES FOR

CONVERSION.

The City separately challenges the district court's nominal damages award of $2.50 

for 1,034 days ($2,585) for Drouhard's lost use, access, repair, and "damages that may 

have been sustained" to her car during storage. The City claims that the so-called 

"nominal damages" are consequential damages which require specific proof. 
26

We agree. The court stated that its award was "to compensate" Drouhard for her 

losses despite labeling these as nominal damages. And as detailed in our discussion above 

of nominal damages for trespass, this amount of nominal damages is excessive and 

Drouhard cannot receive both actual and nominal damages for the same claim. We thus 

reverse the award of nominal damages for the City's conversion.

We note the City's additional argument that the district court prejudiced it by using 

at trial a different measure of damages than it had said it would use. But that argument 

targets only the court's awards of nominal damages and is thus mooted by our rulings 

reversing those awards.

VI. THE DISTRICT COURT PROPERLY GRANTED INJUNCTIVE RELIEF.

Lastly, the City contends that the district court committed legal error by granting a 

permanent injunction. 

Appellate courts review the grant or denial of an injunction for an abuse of 

discretion. Downtown Bar and Grill, LLC v. State, 294 Kan. 188, 191, 273 P.3d 709 

(2012). Typically, the party asserting the injunction error has the burden to establish an 

abuse of discretion. Steffes v. City of Lawrence, 284 Kan. 380, 393, 160 P.3d 843 (2007). 

A court abuses its discretion if the judicial decision is based on an error of law. State v. 

Tafolla, 315 Kan. 324, 328, 508 P.3d 351 (2022).

The City contends that the district court abused its discretion by granting an 

injunction without making the required findings to support its decision. See, e.g., Empire 

Mfg. Co. v. Empire Candle, Inc., 273 Kan. 72, 86-87, 41 P.3d 798 (2002) (finding an 

abuse of discretion in district court's granting injunctive relief without regard to the 

criteria set out in Sampel v. Balbernie, 20 Kan. App. 2d 527, 530-31, 889 P.2d 804 
27

[1995]). In general, to obtain injunctive relief, the movant must prove four elements, 

known as the balancing of equities test:

"'"(1) [A] substantial likelihood that the movant will eventually prevail on the merits; (2) 

a showing that the movant will suffer irreparable injury unless the injunction issues; (3) 

proof that the threatened injury to the movant outweighs whatever damage the proposed

injunction may cause the opposing parties; and (4) a showing that the injunction, if 

issued, would not be adverse to the public interest."'" Friess v. Quest Cherokee, 42 Kan. 

App. 2d 60, 64, 209 P.3d 722 (2009).

True, the district court did not make any of these findings that are typically 

prerequisites for an injunction. But the City has not shown that those findings are 

necessary here. "Where there has been shown an ongoing or continuing violation of a 

landowner's rights by the construction of trespassing structures, the general rule is that 

legal remedies are inadequate and that injunctive relief is appropriate." Friess, 42 Kan. 

App. 2d at 65. "This principle is consistent with the general principle that legal remedies 

are inadequate to redress ongoing or continuing violations. See Mid-America Pipeline 

Co. v. Lario Enterprises, Inc., 942 F.2d 1519, 1528-30 (10th Cir.1991)." Friess, 42 Kan. 

App. 2d at 65. Thus in Friess, the trespasser who proceeded with knowledge of its 

encroachment was entitled to no balancing of equities. 42 Kan. App. 2d at 67. Drouhard 

showed an ongoing or continuing violation of her rights by the installation of the Water 

Salesman and by the City's invitation for the public to use it.

In Mid-America Pipeline Co., when a party trespassed by exceeding the scope of 

its easement, our Supreme Court found that the district court erred by using the four 

elements: "Since Mid-America [the aggrieved landowner] has clearly defined rights 

under the easement that are recognized and protected by law, the district court should not 

have balanced the equities." Mid-America Pipeline Co. v. Wietharn, 246 Kan. 238, 251, 

787 P.2d 716 (1990). There, the construction of buildings on another's easement created a 
28

continuing violation that did not cease with the completion of the construction, so an

injunction was appropriate regardless of the balancing of equities test.

"In establishing this exception to the general rule requiring a balancing of 

equities for injunctive relief, our Supreme Court considered cases from other jurisdictions 

that held: '"The benefit of the doctrine of balancing the equities, or relative hardship, is 

reserved for the innocent defendant who proceeds without knowledge or warning that he 

is encroaching upon another's property rights."' 246 Kan. at 247. Where the landowner 

has done nothing to mislead the trespasser or has warned the trespasser that construction 

would violate the landowner's rights and the trespasser has actual and constructive 

knowledge of the terms of an express easement with clear rights, there need not be any 

balancing of equities before issuing a mandatory injunction. See 246 Kan. at 248. In 

Wietharn, the court stated that to rule otherwise would render the terms of the easement 

'meaningless and Mid-America's rights thereunder illusory.' 246 Kan. at 250-51." Friess,

42 Kan. App. 2d at 66-67.

The City's installation of the Water Salesman on Drouhard's property falls within 

this rule. Drouhard, the landowner, did not mislead the City but warned it repeatedly that 

the Water Salesman exceeded the scope of the City's easement. The City had actual 

knowledge of the terms of the express easement agreement, thus the district court did not 

abuse its discretion by not balancing the equities before issuing an injunction. 

The district court's award of actual damages made Drouhard whole for her 

previous losses, and its issuance of a permanent injunction prevented future trespass by 

persons seeking to use the Water Salesman. We find no abuse of discretion in its issuance 

of an injunction.

We affirm the district court's rulings except for its awards of nominal damages, 

which we reverse.

Affirmed in part and reversed in part.