ROBERT THACKER and GLEMA THACKER V. GARY DEAN ROBINSON and BETTY ROBINSON, his wife, MARY SUE HALL and CLINTON DEAN HALL, her husband, JOYCE BEMBOW and ROBERT BEMBOW, her husband, MARVIN DOUG ROBINSON and IVOLENE JOYCE ROBINSON, his wife, JOHNNY DALE ROBINSON, WILLIAM KENNETH ROBINSON and SARAH DORIS ROBINSON, his wife, the above being certain of the heirs of EARL ROBINSON, HARVEY ROBINSON and ORPHA ROBINSON, his wife, GLADYS CONWAY and BERT CONWAY, her husband, FREDDY ROBINSON and LINDA ROBINSON, his wife, VIRGIL ROBINSON, single, JETTIE THOMPSON and FREELAND THOMPSON, JR., her husband
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RENDERED: May 8, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 96-CA-2387-MR
ROBERT THACKER and
GLEMA THACKER
v.
APPELLANTS
APPEAL FROM PIKE CIRCUIT COURT
HONORABLE CHARLES E. LOWE, JR., JUDGE
ACTION NO. 90-CI-919
GARY DEAN ROBINSON and BETTY
ROBINSON, his wife, MARY SUE HALL
and CLINTON DEAN HALL, her husband,
JOYCE BEMBOW and ROBERT BEMBOW, her
husband, MARVIN DOUG ROBINSON and
IVOLENE JOYCE ROBINSON, his wife,
JOHNNY DALE ROBINSON, WILLIAM KENNETH
ROBINSON and SARAH DORIS ROBINSON,
his wife, the above being certain of
the heirs of EARL ROBINSON, HARVEY
ROBINSON and ORPHA ROBINSON, his wife,
GLADYS CONWAY and BERT CONWAY, her
husband, FREDDY ROBINSON and LINDA
ROBINSON, his wife, VIRGIL ROBINSON,
single, JETTIE THOMPSON and FREELAND
THOMPSON, JR., her husband
APPELLEES
OPINION
AFFIRMING
* * * * * * *
BEFORE:
GUDGEL, Chief Judge, ABRAMSON, and GUIDUGLI, Judges.
ABRAMSON, JUDGE:
Robert and Glema Thacker appeal from a July 29,
1996, order of Pike Circuit Court ordering them to permit the
Commonwealth of Kentucky, Transportation Cabinet ("Transportation
Cabinet") to build, on behalf of the Thackers' neighbors, a
passway across the Thackers' property near Sword Fork Creek in
Pike County, Kentucky.
The Thackers maintain that the trial
court erred by permitting construction of the passway without
requiring the Transportation Cabinet to undertake condemnation
proceedings and to pay damages pursuant to KRS Chapter 177.
Agreeing with the trial court that the Thackers' property is
burdened with an easement which obviates condemnation proceedings
and believing that the relocation of the passway and the type of
passway authorized by the trial court are reasonable, we affirm.
The parties all own property along the hollow defined
by Sword Fork Creek in Pike County.
The Thackers own the mouth
of the hollow on both sides of the creek near where Sword Fork
joins Ford's Branch; the appellees own parcels farther up the
creek.
Prior to the spring of 1989, the appellees gained access
to their land along a roadway that began in the creek bed on the
Thackers' property and proceeded in close proximity to the creek
(either in the bed or on the bank) up the hollow.
In 1989, the
Transportation Cabinet widened and otherwise improved Kentucky
Highway 23, which, in the vicinity of Sword Fork, generally
follows Ford's Branch.
Incidental to this work, the
Transportation Cabinet altered the course and contour of Sword
Fork Creek.
It deepened the stream bed and angled the banks,
apparently to improve the creek's drainage capacity, and covered
the bed with large rocks.
These changes and others rendered the
creek and its banks unsuitable for vehicular traffic and thus
obliterated the appellees' access to the Sword Fork hollow.
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Soon
thereafter the Thackers erected a fence across what had been the
access road and disavowed any right in the appellees to cross
their property.
In 1990, the appellees brought suit against the
Transportation Cabinet and the Thackers to have access to their
Sword Fork properties restored.
The trial court ordered the
Transportation Cabinet to build a new road up the hollow and
approved a plan which called for a portion of the road to cross
the Thackers' property near the left bank (right-hand side
looking upstream) of Sword Fork Creek.
The Transportation
Cabinet appealed that ruling to this Court, which upheld the
injunction to restore reasonable access, but on separation of
powers grounds reversed the part of the order specifying a
particular manner of compliance.
On remand, accordingly, the trial court reiterated its
order that the Transportation Cabinet restore access to the
hollow up Sword Fork, but left to the Cabinet the devising of a
suitable means of doing so.
The Transportation Cabinet obtained
consent from all the appellees for a roadway up the hollow, but
failed to reach an agreement with the Thackers, who insist that
any right-of-way across their property outside the original way
up the creek bed involves a taking of their property which should
be compensated.
On motion to resolve this impasse, the trial court
found the Thackers' property to be burdened with a passway
easement for the benefit of the properties above it in the
hollow.
It found that this passway is public in nature, and that
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the original passway had been obstructed, with the Thackers'
knowledge and consent, during the improvement of Highway 23.
It
further found that the Thackers had unreasonably refused to
designate an alternative right-of-way, and that the
Transportation Cabinet's proposal for a ten-foot-wide gravel road
across the Thackers' land was suitable.
The Thackers appeal,
claiming that the trial court exceeded its authority by ordering
a taking of their land without condemnation proceedings and
without just compensation.
We note initially that the Transportation Cabinet has
not been named a party to this appeal.
Asked to explain why the
Transportation Cabinet should not be deemed an indispensable
party, the Thackers asserted that their position on appeal is not
adverse to the Transportation Cabinet's and so resolution of the
issues they have raised does not require the Cabinet's
participation.
Inasmuch as the Thackers seek compensation from
the Commonwealth for taking a portion of their land, we do not
agree that the Cabinet would be unaffected by any disposition of
this appeal.
We do agree, nevertheless, that the Transportation
Cabinet is not an indispensable party to this appeal.
In Braden v. Republic-Vanguard Life Ins. Co., Ky., 657
S.W.2d 241 (1983), our Supreme Court held that
CR 73.03 requires that a "notice of appeal
shall specify all of the appellants and all
of the appellees . . ." Failure to specify
any party whose absence prevents the appellate
court from granting complete relief among
those already parties would be fatal to the
appeal.
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657 S.W.2d at 243 (citing Levin v. Ferrer, Ky., 535 S.W.2d 79
(1975)).
With respect to the appellees, the Thackers seek
reversal of the trial court's order deeming their land burdened
by the appellees' easement.
Vis-a-vis the Transportation
Cabinet, however, the Thackers seek only to have this matter
remanded for additional consideration.
The Transportation
Cabinet's absence does not prevent either remedy.
Accordingly,
it is not an indispensable party, and this appeal need not be
dismissed.
Secondly, we feel compelled to note an apparent issue
regarding the finality of the July 26, 1996, order from which the
Thackers have appealed.
That order, in addition to the findings
and conclusions summarized above, provides that "[t]his cause is
retained on the docket for further proceedings not inconsistent
herewith including the Plaintiffs' claim for damages."
If in
fact there were still before the trial court additional claims in
this matter ripe for adjudication, the July 26 order before us
would be merely interlocutory and, because that order was not
made final pursuant to CR 54.02, this Court would not be
authorized to entertain the Thackers' appeal.
Hook v. Hook, Ky.,
563 S.W.2d 716 (1978); Huff v. Wood-Mosaic Corporation, Ky., 454
S.W.2d 705 (1970).
The trial court's attempt to retain
jurisdiction notwithstanding, we believe that the July 26 order
is final and appealable under CR 54.01 because the Thackers'
entitlement, if any, to damages cannot be adjudicated until the
propriety of the relief already awarded is determined.
At this
point in time, the trial court has decided all that it can
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decide.
The fact that additional issues may arise upon the
resolution of this appeal does not render the July order nonfinal and non-appealable.
Murty Bros. Sales, Inc. v. Preston,
Ky., 716 S.W.2d 239 (1986).
Turning to the merits of the Thackers' appeal, the
trial court ruled that the Thackers' property is burdened by an
access easement for the benefit of the property of the appellees.
The obstruction of the original access way gave rise, according
to the trial court, to an obligation on the part of the Thackers
to designate an alternative path across their property, and their
failure or refusal to do so gave the appellees a right to select
a reasonable path subject to the trial court's approval.
Meanwhile, the Transportation Cabinet had been ordered to remedy
its obstruction of the appellees' access-way.
Complying with
this order, the Transportation Cabinet proposed to build a new
access road, including a section across the Thackers' land.
The
trial court found that the Transportation Cabinet's proposed road
would satisfy the appellees' easement right against the Thackers.
For their appeal, the Thackers have chosen largely to ignore the
rationale of the trial court's ruling--the appellees' easement
across the Thackers' property--and have argued instead that the
trial court repeated the error this Court identified on the first
appeal, that of overstepping its constitutional authority by
attempting to tell an executive agency how to perform its duties.
The Thackers' alleged errors aside, the questions before us are
whether the trial court correctly determined that the appellees
have an access easement across the Thackers'
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property, and if so whether the road which the Transportation
Cabinet has proposed would accord with that right.
An easement may only be created in one of the following
ways: either by express written grant, by implication, by
prescription, or by estoppel.
428 (1992).
Loid v. Kell, Ky. App., 844 S.W.2d
The manner of its creation will usually indicate an
easement's purposes, and its purposes, in turn, will determine
its nature and extent.
Newberry v. Hardin, Ky., 248 S.W. 427
(1952); Thomas v. Holmes, 306 Ky. 632, 208 S.W.2d 969 (1948).
"The use of an easement must be reasonable and as little
burdensome to the landowner as the nature and purpose of the
easement will permit."
Commonwealth of Kentucky, Dept. of Fish
and Wildlife Resources v. Garner, Ky., 896 S.W.2d 10, 13-14
(1995).
If an easement is not definitely located, the servient
owner has the right initially to designate a reasonable route,
but, if he fails to do so within a reasonable time, that right
passes to the dominant owner.
If the parties cannot agree, the
trial court may decide the easement's location.
Clarkson, Ky., 338 S.W.2d 691 (1960).
Daniel v.
Moreover,
"[t]he owner of a right of way has the right
to enter upon the servient estate on which
no actual way has been prepared and constructed
and to make such changes therein as will
reasonably adapt it to the purposes of a way,
having due regard to the rights of others
who may have an interest in the way. . . ."
Elam v. Elam, Ky., 322 S.W.2d 703, 706 (1959) (quoting from
Walker v. E. Williams & Merrill C. Nutting, Inc., 302 Mass. 535,
20 N.E.2d 441, 445 (1939)).
An easement may be abandoned, either
expressly or by implication.
Illinois Cent. R. Co. v. Roberts,
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Ky. App., 928 S.W.2d 822 (1996); Helton v. Jones, Ky., 402 S.W.2d
694 (1966).
It may be lost by prescription.
City of Harrodsburg
v. Cunningham, 299 Ky. 193, 184 S.W.2d 357 (1944).
Or it may
lapse, if the circumstances giving rise to it cease to exist or
if the underlying purposes become impossible to effect.
a strong presumption, however, against forfeiture.
There is
Scott v. Long
Valley Farm Kentucky, Inc., Ky. App., 804 S.W.2d 15 (1991).
In this case, the trial court found that an easement
for the benefit of appellees' property had been created by an
express grant in one of the deeds in the Robinson Heirs' chain of
title.
That 1912 deed provides for "a ridaway (sic) out to the
mouth of Sowards Fork,"
pathway.
but does not specify a particular
The trial court found that a route had been established
in and along Sword Fork Creek and that the obliteration of that
route incident to the Transportation Cabinet's widening of
Highway 23 had not terminated the easement.
The court further
found that the Thackers had refused to designate an alternative
route and that the route proposed by the appellees and the
Transportation Cabinet is reasonable.
Because the transcript of
the June 4, 1996, hearing on this matter, although designated,
was not included in the record submitted to this Court, we are
obliged to presume that the evidence supports the trial court's
findings.
Dillard v. Dillard, Ky. App., 859 S.W.2d 134 (1993).
In light of the principles referred to above, we agree with the
trial court that the facts it found establish the appellees'
right to a reasonable access way across the Thackers' property
and that the Transportation Cabinet's proposal is suitable.
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The
Thackers have pointed to no evidence suggesting that another type
of road or one differently situated would interfere less with
their property while still providing the appellees with adequate
access to their properties.
Instead, the Thackers rely on Commonwealth of Kentucky,
Dept. of Transportation v. Knieriem, Ky., 707 S.W.2d 340 (1986),
to claim that the Transportation Cabinet either has no authority
to replace the access way lost during work on Highway 23, or may
do so only pursuant to a condemnation proceeding.
In Knieriem,
the Transportation Department condemned a first strip of the
Knieriems' land in order to widen a highway, and, when that strip
proved to contain a neighboring landowner's private easement, the
Department attempted to condemn a second strip of the Knieriems'
land to replace the right-of-way.
Our Supreme Court deemed the
second condemnation invalid as a taking of private property for a
private use.
Knieriem and the other cases the Thackers cite do
not apply in this situation, however, because there has been no
taking, either at the time of the highway construction or now.
The trial court held, and we agree, that, apart from any state
action, the appellees have an easement for ingress and egress
across the Thackers' property.
The Transportation Cabinet's
involvement has confused this issue, but that involvement is
ultimately irrelevant to this decision.
For these reasons we affirm the July 29, 1996, order of
Pike Circuit Court.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Herman W. Lester
Pikeville, Kentucky
Lawrence R. Webster
Pikeville, Kentucky
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