TIM LEVI v. PATRICIA C. PERRAUTAnnotate this Case
SEPTEMBER 3, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
APPEAL FROM HARRISON CIRCUIT COURT
HONORABLE ROBERT W. McGINNIS, JUDGE
ACTION NO. 01-CI-00235
PATRICIA C. PERRAUT
** ** ** ** **
JOHNSON, KNOPF, AND SCHRODER, JUDGES.
Tim Levi appeals from a judgment of the Harrison
Circuit Court finding that Patricia C. Perraut has an easement
across his land, and enjoining him from interfering with her use
of that easement.
He argues that the easement reserved by their
common grantor could only pass by specific grant to subsequent
grantees, and not to all subsequent grantees of property adjacent
to the easement.
We find that the easement reserved by the
common grantor was appurtenant to the land, and therefore passed
to all subsequent grantees.
Hence, we affirm.
The tracts owned by Levi and Peerraut were originally
parts of a larger tract owned by Pauline Moss Florence, Virgil D.
Florence, Jr., and Kathleen Bruce Florence (the Florences),
located near the city of Cynthiana in Harrison County, Kentucky.
Sometime prior to 1990, the Florences apparently decided to
subdivide the farm.
They divided the farm into sections, and
over time sold off various lots in each of these sections.
designated the entire development as the “Todd Lane Subdivision.”
On May 26, 1990, the Florences conveyed Lot 1, Section
D of the Todd Lane Subdivision to Levi.
Since this tract was
landlocked, this deed also included a passway easement for the
purpose of ingress and egress from Carl Stevens Road (Ky. 1731).
On February 19, 1991, the Florences conveyed the real property
underlying the easement to Levi.
This area is a strip of land
350 feet long by 50 feet wide, is located between Lot 1 and Lot 2
of Section C of the Todd Lane Subdivision, and includes a lane
running from Carl Stevens Road to Levi’s property.
The 1991 deed
contained the following reservation:
The parties of the First Part [Florences],
their heirs and assigns, reserve the right to
use the hereinabove described tract as a 50’
right of way for ingress and egress to and
from the remaining lands of the parties of
the First Part, their heirs and assigns
forever, and this right to run with the
remaining lands of the parties of the First
Part, their heirs and assigns forever.
On February 25, 1994, the Florences conveyed Lot 2,
Section C of the Todd Lane Subdivision to Perraut.
frontage on Carl Stevens Road.
Lot 2 has
Furthermore, Perraut’s deed does
not mention the easement adjacent to Lot 2, and she concedes that
it was not discussed when she purchased the property.
however, the Florences conveyed a tract adjacent to Levi’s tract
which did not have direct frontage to Carl Stevens Road.
deed specifically included the right to use the easement.
In 1995 or 1996, Perraut approached Levi and asked his
permission to use a portion of the lane to access her garage.
In 2000, however, after a dispute arose between the
parties, Levi revoked his permission and announced that he
planned to fence the boundary between Perraut’s property and the
In response, Perraut brought this action, alleging that
she had acquired an interest in the reserved right-of-way from
She sought a judgment granting her an absolute
right to use the right-of-way and enjoining Levi from interfering
with her use of the right-of-way.
Levi filed a counter-claim
seeking to enjoin Perraut from using the lane.
The matter was
submitted to the trial court on cross-motions for summary
In an order entered on August 15, 2003, the trial
court granted Perraut’s motion for summary judgment.
on September 22, 2003, the trial court entered an order finding
that the easement of way extended to all adjoining grantees of
the Florences, enjoining Levi from interfering with the use of
the right of way.
This appeal followed.
As a preliminary matter, we note that the trial court’s
order of September 22, 2003, does not recite that it is a final
and appealable order, as required by CR 54.02.
trial court had previously denied Levi’s motion for summary
judgment and granted Perraut’s motion.
Because the trial court’s
September 22 order adjudicated all of the rights of the parties
to the action, it was, by operation of law, a final judgment.1
Therefore, while the absence of finality language is unfortunate,
it is not fatal to this appeal.
The parties agree that there are no genuine issues of
material fact, and that interpretation of the deeds is entirely a
question of law.
Consequently, this matter was ripe for summary
We also note that Perraut is not claiming that her
right to use the roadway arose by prescriptive use or by adverse
Furthermore, she does not claim that her right to
CR 56.03; Steelvest, Inc. v. Scansteel Service Center, Inc.,
Ky., 807 S.W.2d 476 (1991).
use the right of way arises out of necessity or by implication of
Thus, Levi’s arguments on these points are unavailing.
Rather, Perraut claims that the easement reserved by
the Florences runs with the land and passed to all of the
Florence’s subsequent grantees.
Although the parties
have not framed the issue thus, it is apparent that Perraut
claims the easement reserved by the Florences was appurtenant to
If an easement is to be exercised in connection with
the occupancy of particular land, then ordinarily it is
classified as an easement appurtenant.4
The land benefited by
the easement is known as the dominant tenement, and the land
burdened by it is the servient tenement.5
appurtenant easement exists for the benefit of the dominant
estate as an entirety, and not for any particular part thereof.6
In contrast, an easement in gross is merely a personal right to
See Cole v. Gilvin, Ky. App., 59 S.W.3d 468 (2001).
Martin v. Music, Ky., 254 S.W.2d 701, 703 (1953).
Scott v. Long Valley Farm Kentucky, Inc., Ky. App., 804 S.W.2d
15, 16 (1991); citing Lyle v. Holman, Ky., 238 S.W.2d 157 (1951).
25 Am. Jur. 2d Easements and Licenses § 10, p. 578 (1996 & 2004
use the land of another, and does not run with the land.
is no dominant or servient estate.7
The specific language used in the deed from the
Florences to Levi created an easement appurentant to the land.
While Levi concedes that the easement runs with the land, he
argues that it could only pass to grantees specifically named by
the Florences and not to all of their subsequent grantees.
also asserts that the Florences’ inclusion of the easement in the
deeds of some but not all grantees demonstrates that they only
intended the easement to be for the benefit of grantees who
lacked direct access to Carl Stevens Road.
However, the failure of the Florences to specifically
grant an easement to Perraut in her deed would not preclude her
from having a right to use the roadway.
pass with the land to which they are appurtenant without mention
in the deed.8
The right-of-way reserved in the Florences’ deed
to Levi was designated for the benefit of all of the Florences’
reserved property, which would include the tract subsequently
Inter-County Rural Elec. Co-op. Corp. v. Reeves, 294 Ky. 458,
171 S.W.2d 978, 983 (1943). See also 25 Am. Jur. 2d Easements
and Licenses § 11, p. 579.
Smith v. Combs, Ky. App., 554 S.W.2d 412, 413 (1977); citing
KRS 381.200(1), “[e]very deed, unless an exception is made, shall
be construed to include all buildings, privileges and
appurtenances of every kind attached to the lands therein
conveyed.” See also Thomas v. Brooks, 188 Ky. 253, 221 S.W.542
purchased by Perraut.
Therefore, the trial court properly found
that it passed to all subsequent grantees of the Florences who
were adjacent to the easement, even if the right-of-way was not
specifically granted in their deeds.
While it could be argued
that the subsequent grantees’ use of the easement places an
unreasonable burden on the servient estate,9 that question has
not been raised.
The trial court did not err by entering a
judgment for Perraut or by enjoining Levi from interfering with
Perraut’s use of the easement.
Accordingly, the judgment of the Harrison Circuit Court
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Edwin M. Culbertson
Wayne W. Fitzgerald
Smith v. Combs, 554 S.W.2d at 413.