VICKIE MAYNARD and LEWIS MAYNARD v. CONJEANIA JONES and JULIUS JONES
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RENDERED: June 26, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 97-CA-1653-MR
VICKIE MAYNARD and
LEWIS MAYNARD
APPELLANTS
APPEAL FROM MARTIN CIRCUIT COURT
HONORABLE STEPHEN FRAZIER, JUDGE
ACTION NO. 95-CI-000023
v.
CONJEANIA JONES and
JULIUS JONES
APPELLEES
OPINION
AFFIRMING
* * *
BEFORE:
ABRAMSON, GUIDUGLI, AND KNOX, JUDGES.
KNOX, JUDGE:
Appellants Vickie and Lewis Maynard take this
appeal from the judgment of the Martin Circuit Court fixing a
boundary line between adjoining properties owned by appellants
and appellees Conjeania and Julius Jones, and further ruling that
appellants have no right to a prescriptive easement across the
disputed property.
This action arose when appellees filed a
trespass action, seeking ejectment against appellants.
Appellants in turn filed a counterclaim to assert their right to
a prescriptive easement running across a strip of land owned by
appellees over which appellants claim access to their property.
Appellees filed this action in January 1995.
After
appellants filed an amended counterclaim in May 1995, the case
proceeded with discovery.
placed in the record.
Several depositions were taken and
In addition, the parties entered into a
stipulation with respect to testimony that would be offered by
Larry Fitch (Fitch), a land surveyor retained by appellees.
On
October 16, 1996, counsel for appellants, Dale Phillips, filed a
motion to permit him to withdraw from the case.
The following
day, October 17th, appellees moved the court for an order of
submission for final judgment, based upon the record and the
depositions therein, and certified the motion as having been
served upon counsel for appellants, Mr. Phillips.
On October 22,
1996, the trial court signed an order permitting Mr. Phillips to
withdraw his representation of appellants.
On October 29, 1996, Mr. Phillips informed appellees'
counsel by letter that he would continue representing appellants
insofar as further discovery was needed, and that he would
shortly schedule other depositions.
However, the record reflects
no activity at all, including discovery proceedings, for a period
of six months, when the trial court entered its judgment of April
22, 1997.
On that date, the court rendered its decision fixing
the boundary line consistent with appellees' position, and
rejected appellants' easement claim.
Appellants then moved to
alter, amend, or vacate the court's judgment, which motion was
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filed by Mr. Phillips, the same counsel who had sought to
withdraw and who now represents appellants in this appeal.
That
motion was denied by the trial court, and this appeal ensued.
First, appellants argue the trial court entered
judgment before they had an opportunity to complete their proof,
and they were thus denied the opportunity to present all of their
evidence.
Appellants further argue the trial court did not draft
its own findings, but rather improperly adopted findings prepared
by appellees.
The record reflects that, at the time Mr. Phillips
filed his motion to withdraw (October 16, 1996), this case had
been pending for some 19 months.
Both parties took several
depositions, and entered into stipulations regarding Fitch's
testimony.
While appellees filed their motion to submit only one
day after Mr. Phillips filed his motion to withdraw, the record
reflects that Mr. Phillips was served with appellees' motion.
Further, while Mr. Phillips informed appellees' counsel by letter
dated October 29, 1996, that he intended to complete taking proof
on behalf of appellants, and that he would shortly schedule other
depositions, the record reflects that no further proof was taken.
To the extent that the question is whether appellants
were deprived of their right to complete their proof, we believe
the record reflects they were not.
Counsel for appellants, Mr.
Phillips, was served with appellees' motion to submit.
Although
Mr. Phillips advised appellees' counsel that he intended to
remain in the case and take further proof, no further proof had
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been taken by April 22, 1997, some six months later.
We believe
there was ample opportunity for further discovery to be completed
should either of the parties have desired to do so.
For that
reason, we cannot conclude that appellants were deprived of their
right to present additional evidence.
Further, we have compared the trial court's judgment
with the proposed judgment submitted to the court by appellees.
We believe the differences in the language of the two documents
are a sufficient indication that the trial court's judgment is
its own product.
Next, appellants complain that the trial court's
judgment is not supported by credible evidence.
adjoining tracts.
The parties own
Appellees assert that appellants wrongfully
claim an easement across their property, while appellants claim
they acquired the right to use the disputed strip of land by way
of prescription.
The trial court first proceeded to fix the
boundary line between the properties.
In doing so, it relied
upon a plat prepared by Fitch, which the parties had stipulated
could be submitted into evidence.
Fitch established the boundary
line by beginning at a point all parties agreed was a beginning
point for fixing the boundary, that point being a 40-inch black
oak tree opposite a paved road adjoining both properties, and
thence running through a point where a 14-inch box-elder stands
above the paved road, but where a mulberry tree once grew, thence
to a point in an old creek bed 600 feet from the mouth of a
branch.
That position was contrary to appellants' position that
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the boundary line, though also measured from the black oak tree,
angled westward from the line established by Fitch, through a
point below the paved road where an old mulberry tree had once
existed, thence to the creek bed.
Appellants produced several witnesses, including a
former owner of their property and several neighbors, who
testified that a mulberry tree had once existed which stood in
the boundary line appellants contend separates the properties.
Appellants argue that the court erred in ignoring this testimony
and in fixing the boundary line as it did.
In fixing the boundary line, the court relied upon the
plat prepared by Fitch and the stipulations entered into by the
parties with respect to testimony Fitch would offer.
Fitch, in
turn, relied upon the description of the boundary line contained
in a deed in appellees' chain of title, identified as a deed from
John J. Jennings to W. W. Fannin, containing the following
description of the line: "[D]own the hill with the Old Mose
Damron and James Johnson line to a large flat rock; thence down
the hill to Rockcastle Creek, thence up with the meanders of
Rockcastle 600 feet to the mouth of a branch. . . ."
If substantial evidence exists to support the
trial court's findings, they will not be set aside unless clearly
erroneous.
Carter v. Carter, Ky., 382 S.W.2d 400 (1964).
Here,
a factual dispute existed with respect to the former location of
a mulberry tree.
While witnesses testifying on behalf of
appellants stated that a mulberry tree was located below the
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paved road in the boundary line, that testimony was contradicted
by witnesses who testified that the mulberry tree was located
above the road where a box-elder is now located and that the boxelder stands in the boundary line.
Considering the survey
performed by Fitch, and the testimony of witnesses placing the
location of the box-elder/former mulberry tree, we believe the
trial judge's findings fixing the boundary are supported by
substantial evidence.
Next, appellants argue that the trial court erred in
ruling they did not acquire a prescriptive easement over a
driveway across appellees' property to their own.
The trial
court, in ruling that appellants had not established a right by
prescription to use the driveway, focused upon the testimony of
Joe Fannin (Fannin), appellees' father, that he constructed (i.e.
filled) the driveway in 1984, only eleven years prior to
appellants' having claimed an easement, and gave permission to
appellants' predecessor in title, Vickie Maynard's father, to use
the driveway.
Appellants argue that the trial court ignored the
testimony of other witnesses who testified that the driveway had
been in existence for over fifteen years and had been in use by
Mrs. Maynard's father, and then appellants, as an access to their
property.
While there was considerable testimony from appellants'
witnesses, by way of deposition, that the driveway had been in
existence for nearly 40 years, we do not believe we can conclude
that the trial court abused its discretion in relying upon
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Fannin's testimony. Further, the record reflects that appellant
Vickie Maynard, who claims the easement, testified she began
using the driveway in 1983, when she started construction of the
house now located on her property.1
In light of that testimony,
appellants cannot meet the fifteen-year threshold establishing a
prescriptive easement:
Recognition is made of the established rule
that an easement is created when the owner of
a tenement to which the right is claimed to
be appurtenant, or those under whom he claims
title, have openly, peaceably, continuously,
and under a claim of right adverse to the
owner of the soil and with his knowledge and
acquiescence, used the way for as much as 15
years.
Ben Snyder, Inc. v. Phoenix Amusement Co., 309 Ky. 523, 525, 218
S.W.2d 62, 63 (1949).
Additionally, while appellants contend the driveway was
used as access to their property for many years prior to 1983, at
a time when appellant Vickie Maynard's father owned it, the
record sheds some doubt on appellants' contention.
There was
testimony from several witnesses, including Vickie's uncle as
well as her father, that the driveway, prior to its being filled
in 1983 or 1984, was swampy and muddy, and thus seldom passable
for the purpose of accessing appellants' property.
Finally, even
if appellants had been able to meet the fifteen-year threshold,
Fannin's testimony, upon which the trial court relied,
established that he had given permission to Vickie Maynard's
1
She was not married to appellant Lewis Maynard at that
time.
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family to use the driveway.
Such permission is fatal to creation
of a prescriptive easement: "Where the claimant has shown such
long continued use, it will be presumed the use was under a claim
of right, and the burden is upon the owner of the servient estate
[upon which the alleged easement is located] to show that the use
was merely permissive."
Lyle v. Holman, Ky., 238 S.W.2d 157, 160
(1951).
We believe substantial evidence exists to support the
trial court's findings.
Accordingly, we affirm the judgment of
the Martin Circuit Court.
ALL CONCUR.
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BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES:
Dale A. Phillips
Paintsville, Kentucky
John David Preston
Paintsville, Kentucky
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