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No. 124,032

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JUDITH CLAEYS, TRUSTEE OF THE 

CLAEYS REVOCABLE LIVING TRUST,

Appellee,

v.

DAVID CLAEYS and KENNETH CLAEYS,

Appellants.

SYLLABUS BY THE COURT

1.

Partition proceedings, which seek to fairly divide ownership interests in real 

property, are equitable in origin. District courts have broad discretion to determine how 

best to fairly divide those interests. When a cotenant has made improvements to the 

property, the court may adjust the division to apply a credit to that cotenant for his or her 

efforts, measured by the extent the improvement enhances the value of the land.

2.

An improvement is a valuable addition made to real property or an amelioration in 

its condition, amounting to more than mere repairs or replacement, costing labor or 

capital, and intended to enhance its value, beauty, or utility or to adapt it for new or 

further purposes. An improvement need not involve structural additions and need not 

necessarily be visible as long as it enhances the value of the property. 

Appeal from Marshall District Court; JOHN L. WEINGART, judge. Opinion filed April 29, 2022. 

Reversed and remanded with directions.
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Robert W. Coykendall and Sabrina K. Standifer, of Morris, Laing, Evans, Brock & Kennedy, 

Chartered, of Wichita, for appellants.

Andrew J. Lohmann and Jason E. Brinegar, of Galloway, Wiegers & Brinegar, P.A., of 

Marysville, for appellee.

Before MALONE, P.J., ATCHESON and WARNER, JJ.

WARNER, J.: Kenneth and David Claeys appeal the district court's decision 

denying their counterclaim in a real-property partition case against a trust administered 

by their sister-in-law, Judith Claeys. Kenneth and David assert the district court should 

have adjusted the equitable division of the property due to improvements they made to 

the property—namely, converting it from dry land to irrigated farmland—that increased 

its value. After reviewing the record and the parties' arguments, we agree that the 

evidence showed that Kenneth and David improved the land, and the district court erred 

when it found otherwise. We remand the case for a determination whether Kenneth and 

David should be granted an equitable offset for that improvement. 

FACTUAL AND PROCEDURAL BACKGROUND

In 2012, three brothers—Kenneth, David, and Richard Claeys—inherited 

undivided one-third interests in two tracts of land after their father's death. The land 

consisted of a tract in Marshall County and a tract in Washington County. Since 1987, 

Kenneth rented and farmed the Marshall County property under a sharecropping 

arrangement with his father and, after his father died, his brothers. Under this 

arrangement, Kenneth farmed the property and received 60% of the crop yield; the 

remaining 40% was split among the landowners. 

Not long after inheriting the land, Kenneth decided to irrigate part of the Marshall 

County property. Sixty-six acres were already flood-irrigated, but he decided to expand 
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the irrigated acreage by installing a large pivot system to irrigate another 126.55 acres. 

Kenneth had discussed the expansion with his father before his father died, and Kenneth 

knew that irrigating more of the land would result in a higher crop yield and a more 

profitable farm. He also knew that irrigated land was more valuable than dry land. 

Kenneth bought a Reinke 10-tower pivot irrigation system for $83,200. He also 

spent over $10,000 on piping and a water meter necessary to operate the pivot system. 

And he secured a water permit to reroute water from a nearby river to the pivot system; 

without the permit, he could not use the new system to irrigate the extra acreage. David 

helped Kenneth install the system by helping dig and pay for the underground piping. 

The third brother, Richard, was aware of the new irrigation system but not involved in its 

acquisition or installation. Neither Richard nor his wife Judith ever contributed to the cost 

or installation of the pivot system, and Kenneth and David never asked for their 

permission or help. 

Richard died at some point after Kenneth installed the irrigation system, and his 

undivided one-third interest in the land passed to a family trust under Judith's control. 

Judith subsequently filed a partition action against Kenneth and David, seeking to sever 

their joint ownership of the properties in Marshall and Washington counties. Kenneth and 

David counterclaimed, asserting that their improvements to the Marshall County tract 

unjustly enriched Judith and thus they were entitled to an offset in any partition to 

account for those improvements. 

The district court appointed three commissioners to appraise the land so it could 

be divided. The commissioners valued the Washington County tract at $390,000 and the 

Marshall County tract—where Kenneth and David installed the irrigation system—at 

$2,065,000. The appraised value of the Marshall County tract did not include the Reinke 

irrigation equipment, but it did value the 126.55 acres as irrigated (not dry) land. 
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Judith elected to buy the Washington County tract, while Kenneth and David 

elected to buy the Marshall County tract—effectively resolving the initial partition action. 

But Kenneth and David's counterclaim remained. Because Judith's tract was smaller and 

less valuable than the Marshall County tract, Kenneth and David owed her $428,333 to 

account for her one-third interest in that property. The district court ordered $50,000 of 

that sum to be placed in escrow pending the counterclaim; Kenneth and David believed 

that the $50,000, which they felt represented Judith's one-third interest in the increased 

value from irrigation, should be credited against what they owed her.

The counterclaim proceeded to a one-day bench trial. The pretrial order framed the 

issues around the Reinke pivot-system equipment—whether the added irrigation system 

increased the value of the Marshall County tract and, if so, whether credit should be 

applied against Judith's portion to account for the increase. The evidence at trial was 

mostly uncontroverted. Kenneth and David explained the work they devoted to 

converting the tract to irrigable land, including securing the water permit and diverting 

the water to irrigate the land through the newly purchased irrigation equipment. 

Witnesses testified that irrigating the Marshall County tract increased its value—even 

excluding the value of the pivot system itself—between $500 and $2,800 per acre. 

It was also undisputed that the pivot system was Kenneth's personal property that 

he could remove at any time. But as the court-appointed commissioners explained in their 

testimony, the pivot system was not what made the land more valuable. Rather, it was the 

fact that the land was now irrigated. In other words, irrigated land is worth more than dry 

land, and the continued preservation of those acres as irrigable land—through obtaining 

the water permit and taking steps to use that permit by irrigating the land in some way, 

regardless of the specific irrigation equipment used—is what makes the land more 

valuable for appraisal purposes. 
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The district court ruled for Judith on the counterclaim, finding that Kenneth and 

David had not shown they should receive a credit for the irrigation-driven value increase. 

The court recognized that Kansas law allows a cotenant credit for improvements a person

makes to the land—measured by the amount the improvements increase the land's value 

when they happen without the other owners' permission. But instead of considering 

whether irrigating the land improved its value, the district court limited its consideration 

to the specific pivot system Kenneth had purchased. According to the district court, this 

system—the Reinke pivot equipment—was Kenneth's personal property and thus not an 

"improvement." The district court therefore denied Kenneth and David's counterclaim 

and awarded the $50,000 in escrow to Judith. Kenneth and David appeal.

DISCUSSION

Partition proceedings, which seek to fairly divide ownership interests in property, 

are equitable in origin. As such, district courts have broad discretion to determine how 

best to fairly divide those interests. See K.S.A. 60-1003(d); Einsel v. Einsel, 304 Kan. 

567, 577, 374 P.3d 612 (2016). And appellate courts review district courts' exercise of 

these broad powers for an abuse of discretion. 304 Kan. 567, Syl. ¶ 1. A court abuses its 

discretion when it acts in a way that no reasonable court would under the circumstances 

or bases its decision on a factual or legal error. 304 Kan. 567, Syl. ¶ 1. Legal conclusions 

are subject to unlimited review. 304 Kan. at 579.

When partitioning real property, a district court has "full power to make any order 

not inconsistent with the provisions of this article that may be necessary to make a just 

and equitable partition between the parties, and to secure their respective interests."

K.S.A. 60-1003(d). To that end, the Kansas Supreme Court has recognized that

"[i]mprovements added to a property by one of several cotenants may be the subject of a 

credit to that cotenant," measured by the extent the improvement enhances the property 

value. Miller v. Miller, 222 Kan. 317, Syl. ¶ 5, 564 P.2d 524 (1977). 
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Kansas law recognizes that improvements may take many forms. At its base, an

improvement is "'[a] valuable addition made to . . . property (usually real estate) or an 

amelioration in its condition, amounting to more than mere repairs or replacement, 

costing labor or capital, and intended to enhance its value, beauty or utility or to adapt it 

for new or further purposes.'" Haz-Mat Response, Inc. v. Certified Waste Services Ltd., 

259 Kan. 166, Syl. ¶ 4, 910 P.2d 839 (1996) (quoting Black's Law Dictionary 757 [6th 

ed. 1990]). The determination as to whether some circumstance improves the land must 

be rooted in the facts of each case. 259 Kan. 166, Syl. ¶ 3. While many cases discuss 

improvements as structural additions (such as adding a barn or an addition to a 

residence), there is no requirement that an improvement take this form. In fact, "the 

improvement of real property need not necessarily be visible, although in most instances 

it is." 259 Kan. 166, Syl. ¶ 3. Ultimately, the improvement must be some circumstance 

that "enhance[s] the value of the property." 259 Kan. 166, Syl. ¶ 3.

Applying these principles here, the district court erred when it found that Kenneth 

and David did not improve the land when they installed an irrigation system, changing 

the land's status from dry to irrigated. The district court focused solely on one aspect of 

the irrigation system—the physical, above-ground equipment—but Kansas law requires a 

broader inquiry, looking beyond just physical structures and equipment. 

Contrary to the district court's findings and Judith's assertions on appeal, 

improvements are not limited to physical additions. Nor does it matter that obtaining a 

water right and changing a property's status from dry land to irrigated land are not 

physical or visible improvements. The district court thus committed an error of law when 

it focused exclusively on the physical equipment and its status as personal property. 

Indeed, Kenneth and David acknowledged that the equipment was personal property, and 

the court-appointed appraisers did not include the equipment in their land valuation. 
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There was no basis for the court to conclude that the equipment's status as personal 

property meant the land had not been improved.

Instead, the undisputed evidence presented at the bench trial showed that Kenneth 

and David improved the property by converting over 126 acres from dry land to irrigated 

land. This conversion enhanced the property's condition by increasing the farmland's 

productivity and was not a mere repair or replacement. Kenneth and David expended 

significant labor and capital, securing the water permit, purchasing an irrigation system 

and related equipment, and connecting the system to the water source. Kenneth explained

that he intended to enhance the land's utility and adapt it for further purposes because the 

new irrigation system—which supplemented preexisting flood irrigation—allowed for a 

more productive farm and an increased crop yield. And the witnesses at the trial 

unanimously agreed that irrigated land is more valuable than unirrigated property, even 

though their opinions varied as to how much more valuable the land now was. 

Judith points to the evidence that the increased land value is attributable to the 

water permit, suggesting that simply securing a water permit cannot constitute an 

improvement that results in such a difference in land value. But this argument is 

unpersuasive for a number of reasons. Most notably, the evidence at trial was 

uncontroverted that irrigated land was more valuable than unirrigated property, and all 

appraisers agreed that the difference in value was only possible through obtaining a water 

permit. Moreover, under Kansas law, the continued right to use the water permit is 

closely tied to the efforts to actively irrigate the land. A proposed diversion works—here, 

a pivot irrigation system—is key to the permitting process. See K.S.A. 82a-712. When 

the State grants a permit application, it is allowing the applicant "to proceed with the 

construction of the proposed diversion works and to proceed with all steps necessary for 

the application of the water to the approved and proposed beneficial use." K.S.A. 82a712. And to keep a permit or water right, a person must use it. K.S.A. 82a-718(a). Here, 

the water permit was one key aspect of the improvement—converting dry land to 
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irrigated land—and the value increase associated with the permit is just one consideration 

when determining whether there is an improvement.

In sum, Kenneth and David improved the Marshall County tract when they 

converted the 126.55 acres to irrigated land. They obtained a water permit and actively 

used that permit by irrigating the land—buying and installing the Reinke system, 

installing underground piping to connect to the water source, and using that water to 

increase the property's crop yield. Their efforts boosted the value and utility of the land. 

Under these circumstances, the district court erred when it found there was no 

improvement and denied Kenneth and David's counterclaim on that basis. We thus 

remand the case to the district court to determine whether to award credit for this 

improvement based on its assessment of the evidence previously presented at trial. 

Before concluding, we pause to address the parties' arguments regarding the 

Kansas Supreme Court's decision in Miller and the scope of the district court's discretion 

on remand. See 222 Kan. 317, Syl. ¶ 5. Kansas law allows the district court "to make any 

order . . . necessary to make a just and equitable partition between the parties." K.S.A. 

60-1003(d). The district court abused its discretion in its original ruling because it failed 

to consider whether efforts other than the purchasing of the specific pivot system here 

improved the value of the property. In other words, the court did not apply the correct 

legal standard defining improvements in this state.

Kansas courts have long recognized that they can adjust the equities in a partition 

case to account for improvements to the property. See, e.g., Ames v. Ames, 170 Kan. 227,

230-31, 225 P.2d 85 (1950); Sarbach v. Newell, 28 Kan. 642, 645-47 (1882). This power 

reflects the broad equitable discretion district courts have in partition proceedings. See

K.S.A. 60-1003(d). When partitioning property, district courts have "the same powers as 

were exercised by chancery courts under equity practice, including full power to settle all 
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questions involved on just and equitable principles." Knutson v. Clark, 169 Kan. 205, Syl. 

¶ 2, 217 P.2d 1067 (1950). 

But awarding credit for improvements is not required when some other 

circumstance would render an adjustment unfair. The Miller decision is one of many 

showing that courts "may" adjust the presumed division of property to account for the 

various equities in a case. 222 Kan. 317, Syl. ¶ 5. That language is permissive; it reflects 

courts' broad equitable powers in this area. Indeed, the most recent Kansas Supreme 

Court decision addressing equitable adjustments in partition cases confirms that Miller 

does not require that credit be given, but simply recognizes that district courts may award 

it. See Denton v. Lazenby, 255 Kan. 860, 863-64, 879 P.2d 607 (1994). There, the court 

recognized that the right to credit for improvements "is not a legal right but arises from 

principles of equity." 255 Kan. 860, Syl. ¶ 2. The Kansas Supreme Court continued to 

refer to Miller's articulation as the "general rule," but the court did not adjust the 

equitable distribution in that case because both parties had agreed and contributed to the 

improvement. 255 Kan. at 862. In other words, the court confirmed that equitable 

considerations drive the decision whether to award credit when a cotenant makes an 

improvement to the property. 255 Kan. at 863-64.

We read Miller not as a bright-line rule requiring credit when there is an 

improvement, but as simply recognizing that a district court can adjust the equities as it 

sees fit during a partition proceeding. When one party has improved the land, the court 

can certainly consider those efforts and improvements as it determines how to equitably 

partition the real property. Thus, the district court's decision on remand should take into 

account whether to adjust the amount Kenneth and David owe Judith, based on the 

partition of the property, in light of Kenneth and David's improvement, as well as any 

other equitable considerations appropriate to the fair division of the land. 

Reversed and remanded with directions.