RICHARD MARBERRY, AND HIS WIFE1 v. DAVID RAY FRASERAnnotate this Case
RENDERED: March 11, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
RICHARD MARBERRY, AND HIS WIFE1
APPEAL FROM LYON CIRCUIT COURT
HONORABLE BILL CUNNINGHAM, JUDGE
ACTION NO. 03-CI-00093
DAVID RAY FRASER
** ** ** ** **
COMBS, CHIEF JUDGE; JOHNSON AND MINTON, JUDGES.
Richard Marberry has appealed from the August
21, 2003, order of the Lyon Circuit Court which granted summary
judgment in favor of David Ray Fraser.
Marberry claimed that
Fraser violated the “restrictions and regulations controlling
Marberry’s complaint, the notice of appeal, and all documents of record in
this case list “Richard Marberry, et ux”, “Richard Marberry and his wife”, or
refer to “Plaintiffs”. However, the wife’s name is not mentioned in either
the notice of appeal or in the circuit court record. Kentucky Rules of Civil
Procedure (CR) 73.03(1) provides “[t]he notice of appeal shall specify by
name all appellants and all appellees (‘et al.’ and ‘etc.’ are not proper
designation of parties)[.]” Thus, there is a question as to whether
Marberry’s wife is a party to his appeal and whether she would be entitled to
any relief granted in this appeal, but since we affirm, her status is moot.
the management, improvement and appearance of [a]
subdivision[,]” known as Champion Hills Subdivision, by the
“placing of a mobile home2 on Lot No. 1.”
Having concluded that
there is no genuine issue as to any material fact and that
Fraser is entitled to judgment as a matter of law, we affirm.
Sometime in 1960, W. Herbert Champion developed a
tract of land in Kuttawa, Lyon County, Kentucky, called Champion
A subdivision plat was recorded in the
Office of the Lyon County Clerk,3 but evidently it contained no
restriction concerning a mobile home.
Further, there was no
deed of restrictions or any other instrument filed imposing
restrictions upon the subdivision.
On July 12, 1968, Champion conveyed, by deed, Lot No.
18 of Champion Hills Subdivision to Farm Fans, Inc.
various changes in ownership, Lot No. 18 is now owned by
Several conditions and restrictions were listed in
the 1968 deed regarding Lot No. 18, including:
Fraser contends that his manufactured home does not constitute a “mobile
home” under the alleged restrictions. Since we are affirming the trial
court’s determination that the restriction on a mobile home does not apply to
Fraser’s lot, whether Fraser’s manufactured home is a mobile home is moot.
Although Marberry states in his brief that the plat of Champion Hills
Subdivision was recorded in Plat Book 3, pages 3-4 in the Office of the Lyon
County Clerk, we were not provided with a copy of said plat in the record on
appeal. Because the existence of this plat does not appear to be disputed,
we accept it as true.
Marberry refers to the 1968 deed in his brief and a copy of the 1968 deed
was filed in the trial court record. However, the deed to Marberry for Lot
No. 18 of Champion Hills Subdivision is not found anywhere in the record.
The following conditions and
restrictions are part of the consideration
for this deed and run with the land, without
which this deed of conveyance would not have
. . .
No trailers or mobile homes shall be
placed on this property herein
conveyed, except, this shall not be
construed to prohibit the use of same
for purposes other than living quarters
during construction by any builder.
On June 10, 1988, several lots in Champion Hills
Subdivision were sold to Marshall B. Fraser, including Lot No.
1, which is at issue herein.
Following Marshall Fraser’s death
on June 16, 2001, Lot No. 1 of Champion Hills Subdivision was
transferred to his children, including David Fraser, pursuant to
Marshall Fraser’s last will and testament.
On December 18,
2001, David Fraser’s siblings and their spouses conveyed by deed
to David Fraser, a single person, their interests in Lot No. 1
of the subdivision.
This deed contained no conditions or
restrictions on Lot No. 1 of Champion Hills Subdivision.5
In 2002 David Fraser purchased a manufactured home and
placed it on Lot No. 1 of Champion Hills Subdivision on a
permanent, concrete foundation.
On May 1, 2003, Marberry filed
In his brief, Marberry quoted from a deed dated July 1, 1987, conveying
property from the survivor of Champion, Robert Frances, to R. Stephen
Canfield. He also quoted from a deed dated June 10, 1988, conveying property
from Canfield to Marshall B. Fraser. The quotations taken from the deeds
state that both deeds “contained only a general reference to ‘valid and
legally enforceable restrictions of record.’” However, neither the 1987 deed
to Canfield nor the 1988 deed to Marshall Fraser is in the record on appeal.
a complaint for injunctive relief in the Lyon Circuit Court,
alleging that David Fraser had violated “the restrictions and
regulations controlling the management, improvement and
appearance of [Champion Hills Subdivision]” by placement of the
manufactured home on Lot No. 1.
On July 23, 2003, David Fraser filed a motion for
summary judgment, claiming that Marberry’s complaint did not
“identify any conditions, restrictions, regulations or covenants
that would prohibit placement of a mobile home on Defendant’s
David Fraser claimed the complaint “merely references
conditions and restrictions that are applicable to the
In his response to the motion for summary
judgment, Marberry argued that all lots contained within
Champion Hills Subdivision were bound by the restrictions
contained in the 1968 deed between Champion and Farm Fans, Inc.
The trial court, citing Oliver v. Schultz,6 entered an
order on August 21, 2003, granting summary judgment in favor of
Marberry filed a motion for relief from judgment,
or in the alternative, a motion for specific findings on
September 2, 2003.
That motion was denied by the trial court on
December 19, 2003, and this appeal followed.
Marberry concedes that there is no genuine issue as to
a material fact, but he contends that he, rather than David
885 S.W.2d 699 (Ky. 1994).
Fraser, was entitled to a judgment as a matter of law.
appellate court’s standard of review of a trial court’s summary
judgment is whether the trial court correctly concluded that
there was no genuine issue as to any material fact and that
summary judgment was correctly granted as a matter of law.7
Since legal questions are at issue and not findings of fact, an
appellate court need not defer to the trial court’s decision on
summary judgment and its review is de novo.8
The crux of Marberry’s argument is that all lots
located in Champion Hills Subdivision, including David Fraser’s
Lot No. 1, are bound by the same restrictions.
argument is flawed because he fails to recognize that neither
David Fraser’s deed, nor any deed in his chain of title, nor any
plat contains such a restriction.
Instead, Marberry attempts to
impose restrictions on Fraser’s Lot No. 1 through the common law
doctrine of reciprocal negative easement.
A reciprocal negative
easement has been defined as follows:
An implied restrictive agreement or
reciprocal negative easement has been
defined as a covenant which equity raises
and fastens upon the title of a lot or lots
carved out of a tract that will prevent
their use in a manner detrimental to the
enjoyment and value of neighboring lots sold
Scfries v. Kraft, 916 S.W.2d 779, 781 (Ky.App. 1996); Kentucky Rules of
Civil Procedure (CR) 56.03.
See Barnette v. Hospital of Louisa, Inc. 64 S.W.3d 828, 829 (Ky.App. 2002);
and Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky.App. 2001).
with express restrictions in their
As explained in First Security National Bank & Trust Co. of
Lexington v. Peter:10
“[I]n order for a reciprocal negative
easement to arise, there must have been a
common owner of the related parcels of land,
and in his various grants of the lots he
must have included some restriction, either
affirmative or negative, for the benefit of
the land retained, evidencing a scheme or
intent that the entire tract should be
similarly treated, so that once the plan is
effectively put into operation, the burden
he has placed upon the land conveyed is by
operation of law reciprocally placed upon
the land retained.”11
The equitable doctrine of reciprocal negative easement arose
prior to the creation of comprehensive zoning as a method to
protect a purchaser of a lot who had a reasonable expectation
that all the lots in a general development would be equally
burdened and benefited according to the plan of development.12
Marberry asserts that the covenants and restrictions
listed in the 1968 deed apply to all lots in Champion Hills
Marberry cites Paine v. La Quinta Motor Inns,
20 Am.Jur.2d Covenants, Conditions, & Restrictions § 157 (Supp. 2004).
456 S.W.2d 46 (Ky. 1970).
Id. at 50 (quoting 20 Am.Jur.2d Covenants, Conditions, & Restrictions §
173). See also Bellemeade Co. v. Priddle, 503 S.W.2d 734 (Ky. 1973).
See generally McCurdy v. Standard Realty Corp., 295 Ky. 587, 175 S.W.2d 28
Inc.,13 for the proposition that restrictive covenants cover all
the lots of a subdivision, even if the restriction is not
located in the direct chain of title.
However, our Supreme Court in Oliver overruled Paine
and Bishop v. Rueff,14 in part and held that a restrictive
covenant appearing collaterally in a grantee’s chain of title
was not enforceable against the grantee.
The Court in Oliver
Again, even actual notice of a restriction
created between parties by an unrecorded
contract is insufficient to place a
subsequent grantee on notice of the
restriction. To the extent that Paine
reaches an opposite conclusion, it is hereby
As to Bishop, this Court had previously held:
Where the owners of two or more lots
situated near one another convey one of the
lots with express restrictions applying
thereto in favor of the land retained by the
grantor[s], the servitude becomes mutual,
and during the period of restraint the
owner[s] of the lots retained may do nothing
that is forbidden to the owner of the lot
736 S.W.2d 355 (Ky.App. 1987).
619 S.W.2d 718 (Ky.App. 1981).
Oliver, 885 S.W.2d at 701-02.
Bishop, 619 S.W.2d at 720-21.
But the Supreme Court in Oliver sought to clarify the law by
substantially restricting application of the doctrine of
reciprocal negative easement:
[W]e hold that Bishop is only applicable
under two circumstances: first, where the
remainder of the grantor’s property is
restricted in a deed of conveyance in such a
manner that the restriction runs with the
land; and second, that a subdivision plat, a
deed of restrictions, or some other
instruction of record is filed that would
place an ordinary and reasonably prudent
attorney performing a title search on notice
of the restrictions in question [emphasis
original]. To the extent that Bishop allows
a restriction placed in a collateral chain
of title to bind a subsequent grantee in the
absence of a recorded subdivision plat or
deed of restrictions, it is overruled. In
the future, restrictive covenants will be
enforced under Kentucky law only when the
restriction is placed in a recorded
instrument, actual notice of a purported
Thus, Oliver requires that in order to establish a
reciprocal negative easement, a recorded instrument evidencing
the restrictive covenant must be placed directly in the
grantee’s chain of title.
In this case, no such recorded
While Marberry argues that the 1968 deed
evidences the mobile home restriction, the trial court
determined that “[t]here are not restrictions or covenants in
the Defendant’s chain of title, and there are no restrictive
covenants filed of record in the Lyon County [ ] Clerk’s Office
Oliver, 885 S.W.2d at 701.
for Champion Hills Subdivision.”
Since we have not been
provided with either a copy of the plat of Champion Hills
Subdivision or any other deeds in David Fraser’s chain of title,
we must assume that the record below supported the trial court’s
Therefore, we conclude that the trial court was
correct as a matter of law in ruling that the covenants and
restrictions referred to by Marberry do not apply to David
For the foregoing reasons, the summary judgment of the
Lyon Circuit Court is affirmed.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Kenneth V. Anderson, Jr.
B. Todd Wetzel
Commonwealth, Department of Highways v. Richardson, 424 S.W.2d 601, 604