LINEBAUGH (MARK E.), ET AL. VS. CARROLL (ROBERT C.), ET AL.
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RENDERED: APRIL 9, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000888-MR
MARK E. LINEBAUGH
AND MIKE O'HEARN
v.
APPELLANTS
APPEAL FROM EDMONSON CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
ACTION NO. 08-CI-00048
ROBERT C. CARROLL; JAMES D.
CARROLL; ELEANOR M. CARROLL;
COUNTRYWIDE HOME LOANS, INC;
BANK OF EDMONSON COUNTY;
BRANDON HOGAN; AND
LUTHER N. NORENE
APPELLEES
OPINION
VACATING AND REMANDING
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BEFORE: COMBS, CHIEF JUDGE; CLAYTON AND STUMBO, JUDGES.
COMBS, CHIEF JUDGE: Mark E. Linebaugh and Mike O’Hearn appeal from a
judgment of the Edmonson Circuit Court of April 13, 2009, which ruled in favor of
James D. Carroll and Eleanor M. Carroll, his wife, and Robert Carroll in a dispute
involving an easement. At issue is the existence and extent of an alleged easement
over the Carrolls’ property. The trial court held that a reservation clause included
in the Carrolls’ chain of title was of no legal effect. After our review, we vacate
and remand.
By deed of October 31, 1997, Linebaugh acquired property in
Edmonson County known as the Old Hall-Thompson place. Linebaugh conveyed
119.35 acres, more or less, to T and L Investments, Inc. A portion of the property
was subsequently conveyed to Thomas and Charlene Burnett. In 2005, the
Burnetts conveyed the property to the Carrolls. The Old Hall-Thompson house,
formerly a bit of marker or reference point, was torn down by the Carrolls after this
conveyance.
The deed of June 5, 2000, conveying the property from Linebaugh to
T and L Investments contains a lengthy metes-and-bounds description of a 122.35acre tract. Additionally, the deed contains the following language excepting three
acres from the conveyance:
EXCEPTED AND LYING WITHIN the above described
parcel is a three (3) acre tract retained by grantor (Mark
E. Linebaugh), said being described as follows:
Beginning railroad spike driven in the center of Buzzard
Roost Road, said being referenced N 53 deg. 54 min. 19
sec. E 1382.23 feet from the beginning corner of the
above described boundary; thence following the existing
center of said road N 48 deg. 26 min. 53 sec. E 105.39
feet, N 55 deg. 20 min. 23 sec. E 41.94 feet, N 62 deg. 57
min. 29 sec. E 67.45 feet to a railroad spike; thence
leaving said road, S 77 deg. 38 min. 24 sec. E 94.35 feet
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(passing a steel road (sic) at 20 feet) to a 24 inch pike
(marked with 2-sets (sic) of 3-hacks(sic)); thence S 12
deg. 58 min. 57 sec. E 452.80 feet to a steel rod (set);
thence S 77 deg. 01 min. 03 sec. W 282.23 feet to a ½”
steel rod (set); thence N 12 deg. 58 min. 57 sec. W
410.91 feet (passing a steel rod at 390.91 feet) to the
point of beginning. LEAVING a balance of 119.35
acres, more or less conveyed, according to a survey by
Hardin Land Surveying, Registered Surveyor, Doyle
Edward Hardin Ky. LPLS 3406 on May 21, 2000.
The deed also contains the following reservation clause:
The Grantee reserves unto himself and his heirs,
executors and assigns, and this conveyance is subject to,
the water well and septic system located on the property
herein conveyed, near the “old Hall Thompson” house.
(Emphasis added). The Burnetts’ deed of conveyance to the Carrolls provided that
the conveyance was “subject to all valid restrictions, reservations, limitations,
easements, convenants (sic) and conditions as may appear in the record chain of
title. . . .” Prior to the commencement of this action, Linebaugh agreed to convey
his interest in the three-acre tract to Mike O’Hearn.
In March 2008, the Carrolls filed a verified complaint against
Linebaugh, O’Hearn, Luther N. Norene (the attorney who undertook the title
examination), and others. The Carrolls alleged that sewage from the residence on
Linebaugh’s adjoining three-acre tract was being discharged onto their property
and that O’Hearn had installed elements of a septic system on their property
without their permission. They alleged that the “purported reservation of an
interest in the land now owned by [the Carrolls] was ineffective and void due to an
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inadequate description. . . .” Complaint at 3. They sought to enjoin O’Hearn’s
discharge of sewage onto their property and to recover for nuisance and trespass.
Linebaugh and O’Hearn filed an answer and counterclaim. Linebaugh
and O’Hearn admitted that elements of a sewage disposal system had been
installed at the site, but they alleged that the Carrolls’ property was subject to the
easement that permitted the use of the water well and septic system situated near
the Old Hall-Thompson house for the benefit of the dominant estate (i.e., the threeacre tract reserved). Linebaugh and O’Hearn further alleged that although the
Carrolls were fully aware of the existence and extent of the easement, they
nonetheless excavated part of the septic system and caused raw sewage to leak
onto the Linebaugh property. Linebaugh alleged that the Carrolls had obstructed
his rightful access to the septic system and water well; had vandalized the home on
his property; and had harassed and intimidated him. Linebaugh and O’Hearn
sought an injunction and damages.
The parties conducted no discovery. Linebaugh filed his affidavit,
and the Carrolls filed a motion for declaratory judgment. In their motion, the
Carrolls contended that the only issue to be decided was the legal effect of the
reservation. The Carrolls contended that the nature and extent of the reservation
were ambiguous and that the resulting uncertainty had to be resolved in their favor.
They contended that the reservation was ambiguous for two reasons: first, the
reservation was made in favor of the grantee and not Linebaugh, the grantor; and
second, the reservation did not state the nature of the interest at issue: whether it
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was an easement or a fee simple interest. Finally, the Carrolls contended that the
purported reservation lacked an adequate description and that it was, therefore,
unenforceable.
The judgment of the Edmonson Circuit Court was entered on April
13, 2009. Without preamble, the court concluded that the reservation was void as a
matter of law, and title was quieted in the Carrolls. This appeal followed.
On appeal, Linebaugh and O’Hearn argue that the trial court erred in
its construction of the deed’s reservation clause. They contend that the use of the
word grantee rather than grantor at the beginning of the reservation was an
obvious drafting error and that it is clear that Linebaugh intended to create an
easement benefitting the tract described in the exception clause. Linebaugh and
O’Hearn also argue that the description of the reservation is legally adequate.
After our review of the documents and pertinent law, we are compelled to agree
with Linebaugh.
The construction of a deed is a matter of law and, absent an
ambiguity, the intention of the grantor is to be gathered from the four corners of
the instrument. Phelps v. Sledd, 479 S.W.2d 894 (Ky. 1972); Eastham v. Church,
219 S.W.2d 406 (Ky. 1949). The appellees argue that there is no ambiguity in the
deed or the reservation clause so as to allow us to proceed to ascertain the intent of
the parties. Again, the reservation clause bears scrutiny:
The Grantee reserves unto himself and his heirs,
executors, and assigns, and this conveyance is subject
to, the water well and septic system located on the
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property herein conveyed, near the “old Hall Thompson”
house. (Emphasis added).
The exception clause of the deed in the large paragraph of conveyance
immediately precedes this clause. A cursory reading of this clause reveals no
patent ambiguity other than the curious, unusual use of Grantee (undefined and
unnamed, noting that Grantor in the previous paragraph identified the grantor as
Linebaugh). Although the appellees correctly argue that a grantee can reserve a
right, such an occurrence is not the norm. Normally the grantee is on the receiving
end of a conveyance by a grantor; i.e., one who had nothing now is acquiring
something.
A closer reading of the reservation clause reveals that in context, a
latent ambiguity is indeed present: “and this conveyance is subject to ….” “This
conveyance” refers to the 119.35 acres, the subject matter of the first long and
detailed paragraph. The 119.35-acre parcel (the conveyance) is expressly
burdened with, made subject to, “the water well and septic system located on the
property herein conveyed ….” Thus, the grantee of the property conveyed
bears the burden – but does not enjoy the benefit – of the water/septic system
as being located on his property but serving the property of the grantor.
Where there is uncertainty with respect to what interest was conveyed,
the court gives primary consideration to the intent of the parties. Eastham, supra.
“In determining the intention of the parties, courts look at the whole deed, along
with the circumstances surrounding its execution. . . .” Arthur v. Martin, 705
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S.W.2d 940, 942 (Ky.App. 1986). In attempting to ascertain intent, courts are
admonished to employ common sense – all too often a rare guest in the house of
the law:
Fairness, justice and common understanding must enter
into the interpretation of any instrument, and an apparent
mistake in the use of words will not be permitted to
impair what was the real intention of the parties or to
defeat their obvious purpose.
Trivette v. Consolidation Coal Co., 177 S.W.2d 868 (Ky. 1944). (Emphasis
added).
An examination of the entirety of the deed and of the circumstances as
they existed at the time of its execution reveals the intent of the grantor. By
definition and operation of law, a deed’s reservation clause retains in the grantor
an interest in the property conveyed to another. Black’s Law Dictionary 1472
(1968); Moore v. Davis, 117 S.W.2d 1033 (Ky. 1938).
We are persuaded that under these circumstances, the use of the term
grantee to describe Linebaugh, the grantor, in the reservation clause is necessarily
a scrivener’s error. Linebaugh plainly intended to retain the right to use the water
well and septic system that were located near the Old Hall-Thompson house on
property that would be conveyed in fee simple to the grantee, T and L Investments.
This reservation was clearly intended to burden the property conveyed to T and L
Investments and to benefit and to run with the reserved three-acre tract.
Finally, we address the adequacy of the reservation’s description. A
description is sufficient where the property can be located without resort to
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excessive discretion or effort. See Justice v. Justice, 39 S.W.2d 250 (Ky. 1931).
In this case, the description of the easement is not so vague or indefinite as to
prevent its physical identification both with ease and with reasonable certainty.
As to the nature of the interest reserved, the reservation clause
construed with the preceding paragraph indicates language attempting to reserve or
create an easement on the Carrolls’ property to benefit the three-acre tract. The
dominant estate (i.e., the three-acre tract reserved) and the servient estate (i.e., the
remaining acreage burdened by the reserved parcel) are adequately described on
the face of the deed. The subject matter of the reservation is clearly described by
the provisions of the reservation clause; proof of its dimensions and boundaries is
readily available. On remand, the trial court is at liberty to consider extrinsic
evidence and find relevant facts to establish the exact location and parameters of
the easement.
In summary, we hold that the Carrolls’ chain of title adequately
revealed Linebaugh’s intention to reserve the three-acre tract for himself and to
burden with an easement the Carrolls’ property containing the septic system and
water well to serve his three-acre tract. Consequently, the Carrolls’ property was
burdened by the easement at the time it was conveyed to them. Remand is
required for a finding of relevant facts to establish the precise boundaries of the
easement and to quiet title in Linebaugh. As to appellant O’Hearn, his interest in
the land is contingent upon his agreement with Linebaugh and requires no action
by this Court or by the trial court.
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Accordingly, we vacate the judgment of the Edmonson Circuit Court
and remand for further action consistent with this opinion.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT
FOR APPELLANTS:
George R. Carter
Louisville, Kentucky
BRIEF AND ORAL ARGMENT FOR
APPELLEES ROBERT C.
CARROLL, JAMES D. CARROLL,
AND ELEANOR M. CARROLL:
David S. Sprawls
Louisville, Kentucky
BRIEF AND ORAL ARGUMENT
FOR APPELLEE LUTHER N.
NORENE:
Whayne C. Priest, Jr.
Bowling Green, Kentucky
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