JONES (HARRY), ET AL. VS. SPARKS (TERESA), ET AL.
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RENDERED: OCTOBER 16, 2009; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-002006-MR
HARRY JONES AND
ANITA JONES
v.
APPELLANTS
APPEAL FROM ESTILL CIRCUIT COURT
HONORABLE THOMAS P. JONES, JUDGE
ACTION NO. 05-CI-00120
TERESA SPARKS, INDIVIDUALLY;
TERESA SPARKS, AS ADMINISTRATRIX
OF THE ESTATE OF ALGIN STAMPER;
GWENDOLYN SPARKS; CHARLES
STAMPER; ALGIN C. STAMPER; AND
CASSANDRA ROSE STAMPER
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: LAMBERT AND STUMBO, JUDGES; HENRY,1 SENIOR JUDGE.
LAMBERT, JUDGE: Harry and Anita Jones appeal from the Estill Circuit Court’s
judgment in favor of Teresa Sparks, Individually et al., in an action to enforce the
use of an alleged easement. After careful review, we affirm.
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Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
Harry and Anita Jones (hereinafter collectively referred to as “the
Joneses”) were neighbors of Algin Stamper and shared a common land boundary
which fronted on Kentucky Highway 89. Harry alleges that in May 1992, he
approached Stamper about creating a roadway over Stamper’s property so that the
Joneses could obtain easy access to Highway 89. On May 11, 1992, Harry
contends that he met with Stamper to discuss the location of the proposed road.
According to Harry, he and Stamper entered into an oral contract for the purchase
of the alleged easement for the amount of $500.00 on or about May 15, 1992. On
May 16, 1992, Anita withdrew $1000.00 cash and paid $500.00 to Stamper and
allegedly used the rest of the money to obtain a bulldozer to prepare the road. On
May 17, 1992, the Joneses began driving on the road. Anita made several diary
entries detailing these events, which appear in the record as calendar entries.
Over the course of the next thirteen years, the Joneses continued to
utilize the road over Stamper’s property to access their property. They claim to
have made improvements upon the road and to have maintained the entire portion
of the roadway, even the portion over Stamper’s property. The Joneses continued
to use the property until they were advised, subsequent to Stamper’s death, that
they would no longer be allowed to use the road.
The Joneses then brought this action to enforce their rights to the use
of the road under the alleged easement. The defendants, Teresa Sparks,
Individually and as Administratrix of the Estate of Algin Stamper; Gwendolyn
Sparks; Charles Stamper; and Cassandra Rose Stamper; (hereinafter “Appellees”)
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denied the existence of a written agreement evidencing this easement. On August
26, 2008, the Estill Circuit Court held a bench trial. At the trial, Harry Jones, Anita
Jones, Charles Stamper, and Otis Sparks testified. The trial court entered a
judgment on September 26, 2008, ruling in favor of Appellees on the issues of
easement by estoppel, implied easement, and unjust enrichment. The Joneses now
appeal the trial court’s judgment against them.
On appeal, the Joneses argue that the trial court improperly
determined that they were not entitled to an easement by estoppel, an implied
easement, or that the appellees were unjustly enriched. The Joneses also argue that
the trial court improperly allowed testimony about statements Stamper made
before he died regarding the alleged easement.
Since this case was tried before the court without a jury, its factual
findings “shall not be set aside unless clearly erroneous, and due regard shall be
given to the opportunity of the trial court to judge the credibility of the witnesses. .
. .” CR 52.01. See also Lawson v. Loid, 896 S.W.2d 1, 3 (Ky. 1995); A & A
Mechanical, Inc. v. Thermal Equipment Sales, Inc., 998 S.W.2d 505, 509 (Ky.
App. 1999). A factual finding is not clearly erroneous if it is supported by
substantial evidence. Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d
409, 414 (Ky. 1998); Faulkner Drilling Co. v. Gross, 943 S.W.2d 634, 638 (Ky.
App. 1997); Uninsured Employers' Fund v. Garland, 805 S.W.2d 116, 117 (Ky.
1991). However, a reviewing court is not bound by the trial court's decision on
questions of law. An appellate court reviews the application of the law to the facts,
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and the appropriate legal standard is de novo. A & A Mechanical, Inc. v. Thermal
Equipment Sales, Inc., 998 S.W.2d 505, 509 (Ky. App. 1999).
In the instant case, there was no written contract establishing the
easement at issue. Therefore, the Joneses’ argument that they should be vested
with legal title to the alleged easement is clearly barred by the statute of frauds as
set forth in KRS 371.010. Under no circumstance may the Court enforce a parol
agreement for the sale of real estate, or for that matter, an easement. See KRS
371.010; Jennett v. Sherrill, 205 Ky. 307, 265 S.W. 781 (1924). As such, the trial
court properly held that the Joneses must turn to equity as their only means of
recovery.
It is a fundamental principle of Kentucky property law that where the
application of the statute of frauds is clear and unambiguous, equitable relief
should only be granted under the most limited of circumstances. Farmers Bank
and Trust Co. of Georgetown, Kentucky v. Willmott Hardwoods, Inc., 171 S.W.3d
4 (Ky. 2005). The facts of this case do not present such clear and unambiguous
circumstances as envisioned by the courts and the legislature of this
Commonwealth.
Estoppel is an equitable principle utilized to prevent one who has
failed to act when he should have acted from reaping a profit to the detriment of
his adversary. Sizemore v. Bennett, 408 S.W.2d 449, 451 (Ky. 1966). The
requirements necessary to establish the existence of an easement by estoppel are:
(1) conduct which amounts to a false representation or concealment of material
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facts which a party subsequently attempts to assert; (2) intention, or at least the
expectation, that such conduct shall be acted upon by the other party; and (3)
knowledge, actual or constructive, of real facts. Smith v. Howard, 407 S.W.2d
139, 143 (Ky. 1966). Further, an easement by estoppel cannot run with the land
and may pass only upon equitable principles to the subsequent party. See Loid v.
Kell, 844 S.W.2d 428 (Ky. App. 1992).
In the instant case, the trial court found that Algin Stamper neither
engaged in conduct which conveyed a false impression or concealed a material fact
related to the roadway, nor did he believe that the Joneses would rely on his
conduct. Instead, the trial court found that the Joneses failed to produce any
evidence that Stamper knew, or had any reason to know, that they expected him to
execute a deed to this alleged easement.
In fact, the parties’ actions support the trial court’s findings. Had the
Joneses believed that Stamper intended to immediately execute a deed upon
payment of the money, they would not have waited almost thirteen years from the
date of the alleged contract to seek enforcement of the agreement. Consistent with
these facts, the trial court found that Stamper allowed the Joneses to use the
roadway as a matter of courtesy; however, he never had any intention of conveying
legal title to the property. Most importantly, Harry actually admitted in his
deposition that Stamper stated a couple of times that Harry could use the roadway
“while he was living.” It was not clear error for the trial court to infer that had
Stamper intended to convey legal title to the roadway, Stamper would not have
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made such a statement insinuating that Harry could only use the property while he
was alive.
The Joneses also appeal the trial court’s finding that they failed to
meet their burden in proving an easement by implication. Under Kentucky law, an
easement by implication is really a merger of two legal doctrines, a quasi-easement
and an easement by necessity. Carroll v. Meredith, 59 S.W.3d 484, 489 (Ky. App.
2001). A quasi-easement is based on the rule that “where the owner of an entire
tract of land or of two or more adjoining parcels employs one part so that another
derives from it a benefit of continuous, permanent and apparent nature, and
reasonably necessary to the enjoyment of the quasi-dominant portion, then upon a
severance of the ownership a grant or reservation of the right to continue such use
arises by implication of law.” Kreamer v. Harmon, 336 S.W.2d 561, 563 (Ky.
1960). See also Swinney v. Haynes, 236 S.W.2d 705 (Ky. 1951). Generally, in
order to prove a quasi-easement by implication of law, a party must show: (1) that
there was a separation of title from common ownership; (2) that before the
separation occurred the use which gave rise to the easement was so long continued,
obvious, and manifest that it must have been intended to be permanent; and (3) that
the use of the claimed easement was highly convenient and beneficial to the land
conveyed. Evanik v. Janus, 120 Ill.App.3d 475, 485, 76 Ill.Dec. 308, 458 N.E.2d
962, 969 (1983).
A condition precedent to establishing a quasi-easement, then, is that
the claiming party must be able to prove separation of title from common
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ownership. Common ownership was not present in this situation, as Stamper
owned one parcel of land and the Joneses owned the other. Thus, the Joneses’
claim for a quasi-easement must fail as a matter of law.
Even if the Joneses could establish the elements for a quasi-easement,
they cannot establish an easement by way of necessity. An easement by necessity
is based on public policy and an implied intent of the parties favoring the use and
development of land as opposed to rendering it useless. Marrs v. Ratliff, 278 Ky.
164, 128 S.W.2d 604, 609 (1939). A way of necessity generally will not be
implied if the claimant has another means of access to a public road from his land,
however inconvenient. See Standard Elkhorn Coal Co. v. Moore, 217 Ky. 317,
289 S.W. 261 (1926). In the instant case, the Joneses argue that the easement is
necessary because it is difficult to reach their property via the other entrance,
especially during inclement weather. However, the trial court found that the
easement in this case was not a necessity and that the lack of an easement did not
render the property useless. Further, the Joneses have another means of access to
their property, and accordingly a way of necessity should not be implied. Finding
substantial evidence in the record to support the trial court’s findings, we find no
grounds to set the trial court’s determination aside on appeal.
The Joneses also argue they are entitled to relief under the theory of
unjust enrichment and are entitled to the funds they allegedly spent improving the
roadway. For a party to prevail under the theory of unjust enrichment, they must
prove three elements: (1) benefit conferred upon defendant at plaintiff’s expense;
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(2) a resulting appreciation of benefit by defendant; and (3) inequitable retention of
benefit without payment for its value. See Guarantee Electric Co. v. Big Rivers
Electric Corp., 669 F.Supp. 1371, 1380-81 (W.D.Ky. 1987).
The trial court found that the Joneses did not confer a benefit upon
Stamper or his property. Specifically, the trial court found that Stamper did not
benefit in any way from having a road built in the middle of his farm leading to his
neighbor’s property. Further, the trial court did not find any appreciation of the
benefit or any inequitable retention of the benefit as there was no evidence
presented to the trial court showing any increase in property value from the rough
logging road leading to the Joneses’ property. The trial court went so far as to
conclude: “[the] reality is that this road most likely decreases the value of their
property instead of increasing it.” We do not find any clear error with the trial
court’s findings of fact on this issue. As found by the trial court, any money
exchanged regarding this roadway was for the timber the Joneses cut down to
make it. Accordingly, the Joneses cannot recover under the theory of unjust
enrichment, and the trial court did not err in denying recovery under this theory.
Finally, the Joneses argue that the trial court improperly admitted
statements made by Stamper, who was deceased at the time of the trial. Appellees
introduced testimony from Charles Stamper and from Otis Sparks concerning
statements they witnessed Algin Stamper make during discussions with Harry
regarding the roadway. The Joneses argue that Stamper’s statements amounted to
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hearsay under the Kentucky Rules of Evidence (KRE) and should have been
excluded.
Appellees argue that the statements were admissible because the
witnesses had personal knowledge of the transaction at issue pursuant to KRE 602.
However, KRE 602 is not an exception to the hearsay rule and simply states that a
witness must have personal knowledge about which they are testifying. Appellees
also argue that the statements were properly allowed under KRE 803(1) as a
present sense impression of the declarant. KRE 803(1) allows for the introduction
of statements made while the witness was perceiving the event or condition or
immediately thereafter. In the instant case, the testifying witnesses were present
when Stamper and Harry discussed the roadway and alleged easement. They
testified about statements Stamper made as he perceived Harry’s use of the
roadway. As such, the statements were properly admitted by the trial court as
evidence under KRE 803(1) as an exception to the hearsay rule.
Even assuming the statements were not properly admitted under KRE
803(1), Appellees argue that they should have been admitted for impeachment
purposes. Although Appellees do not elaborate on this argument, Harry did testify
at the bench trial that Stamper intended to confer an easement to him for the use of
the roadway. Accordingly, the statements Stamper made during this transaction
were appropriately used to impeach Harry’s testimony to the contrary. Thus, the
trial court did not err in allowing the statements into evidence.
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Finally, any error in admitting Stamper’s statements was harmless.
The evidence in this case indicated that the Joneses knew they were only allowed
to use the roadway until Stamper died, and they waited over thirteen years to
establish any written evidence of an easement or to establish an easement in equity.
Given that they could not establish a written easement and cannot recover under
another equitable theory, we do not see how these statements harmed them in any
way during the bench trial.
In summation, the Joneses did not have a valid written easement,
cannot establish an easement by implication or estoppel, and are not entitled to
recover under unjust enrichment. Accordingly, we affirm the September 26, 2008,
judgment of the Estill Circuit Court in its entirety.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES:
Brian N. Thomas
Winchester, Kentucky
Rodney Davis
Irvine, Kentucky
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