ORVEDA DUNN AND GEORGE DUNN v. MYRA F. POLLITT; RANDY E. POLLITT; AND THE CAMPBELL COUNTY BOARD OF EDUCATION
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RENDERED: March 5, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-000423-MR
ORVEDA DUNN AND GEORGE DUNN
APPELLANTS
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE LEONARD L. KOPOWSKI, JUDGE
ACTION NO. 1993-CI-000273
v.
MYRA F. POLLITT; RANDY E.
POLLITT; AND THE CAMPBELL
COUNTY BOARD OF EDUCATION
APPELLEES
OPINION
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE:
EMBERTON, KNOPF, AND SCHRODER, JUDGES.
KNOPF, JUDGE:
George Dunn and his wife, Orveda Dunn, appeal from
a January 27, 1997, summary judgment and order of the Campbell
Circuit Court granting an appurtenant passway easement across
their land to the adjoining land of their neighbors, Myra and
Randy Pollitt, the appellees.
Provision for this easement does
not appear in the Pollitts’ deed to their property or in any deed
in their chain of title.
Instead, according to the trial court,
the easement arises by necessary implication from the fact that
the Pollitts have no other assured means of ingress and egress.
The Dunns dispute this finding of fact, and contend that the
trial court erred both procedurally and substantively:
procedurally by granting summary judgment despite the factual
dispute and substantively by misapplying the law of easements.
We agree with the Dunns on both scores.
Accordingly, we reverse
the summary judgment and remand for additional proceedings.
The Pollitts acquired their one-acre lot in early March
1993, and about one week later, filed the complaint against the
Dunns from which this appeal has arisen.
In addition to the
easement across the Dunns’ property, the Pollitts sought a
reformation of their deed to amend an allegedly misstated
boundary line.
The parties eventually agreed to a modification
of the description of the Pollitts’ lot, and thus that aspect of
the case plays no part in this appeal.
With respect to the easement, the controversy centers
upon an abandoned county road.
That road, formerly River Road
near and in California, Campbell County, Kentucky, traversed land
once owned by W.H. Young.
In particular, the road traversed lot
18 of the W.H. Young estate which sometime prior to 1959 came
into the possession of Clyde and Leola Young.
Meanwhile, during
the mid-1930's, the Commonwealth built State Highway 8 across
Campbell County.
The new state highway incorporated much of the
old River Road, but in some places the two (2) roads diverged.
One place where they diverged was the Youngs’ lot 18, which
consequently was crossed by both roads.
Apparently as a result
of the state improvements, the sections of River Road which were
not incorporated into the new road were abandoned, with neither
the state nor the county continuing to maintain them.
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Nevertheless, on lot 18 and on adjacent land owned by the
Campbell County Board of Education, the old road remained in use,
although whether as a through way for the general public or
merely as an access road for abutting property owners, the record
does not make clear.
In 1959 Clyde and Leola Young conveyed to the Dunns a
small portion of lot 18, bounded on the east and west by the two
(2) roadways and on the north and south by the lot’s boundary
lines.
The conveyance thus divided lot 18 into three (3)
sections: a western section bounded on the east by the state
highway, a center section bounded on the west by the state
highway and on the east by the old county road, and an eastern
section bounded on the west by the county road.
section was otherwise landlocked.
The eastern
The Youngs gained access to
it, apparently, by driving around the Dunns’ parcel and by using
a short driveway on the adjacent Board of Education’s lot to
reach the old county road.
In 1972, Clyde and Leola Young conveyed a portion of
the easternmost section of lot 18 to Ronald and Mary Lou Young.
This portion, designated as lot 18A, includes the county road as
one of its boundaries.
That road continued to serve as an access
way for the new owners.
By 1993, when Ronald and Mary Lou Young conveyed lot
18A to the Pollitts, the Board of Education’s property was
occupied by the A.J. Jolly School, which had black-topped its
portion of the old county road and expanded the driveway between
the two (2) roads into a horseshoe shaped bus turn around.
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The
Pollitts’ access to their property was by means of this school
driveway and along the remains of the county road between their
lot and that of the Dunns’.
Unhappy with having to cross the Board’s property and
unsure of their right to do so, the Pollitts filed their
complaint seeking an easement across the Dunns’ lot which would
give them direct access to their property from Highway 8.
They
argued that this easement had been implicitly reserved in the
1959 transfer to the Dunns.
That transfer, which had divided lot
18 into three (3) sections, had landlocked the easternmost
section of lot 18 and thus lot 18A.
Their lot was landlocked,
they maintained, despite the continuing availability of the
school’s driveway and the abandoned county road, because that
means of access was merely by sufferance of the Board and not by
legal right.
They were entitled to access, they insisted, that
was not contingent upon their neighbor’s good will.
By order entered October 12, 1998, the trial court
agreed.1
It assumed, apparently, that the abandonment of the old
River Road had extinguished any and all rights to continue using
it.
The trial court thus deemed the old county road and the
history of its use irrelevant to the assessment of the Pollitts’
complaint and refused to entertain any evidence regarding that
1
The Pollitts and the Board have both suggested that the
Dunns’ failure to appeal within thirty (30) days of this 1993
order rendered the summary judgment res judicata. Without
determining when the summary judgment was first declared--a
matter the record leaves in doubt--it suffices to note that under
CR 54.02 that ruling did not become final and appealable until
January 27, 1997, when the trial court entered judgment on the
entire case. The Dunns’ appeal, therefore, is timely.
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road’s status either formerly, at the time of the transfer to the
Dunns, or at present.
Relying on Hall v. Coffey, Ky. App., 715
S.W.2d 249 (1986), the Court held that the transfer to the Dunns
had implicitly reserved an easement across their lot for the
benefit of the eastern portion of lot 18, and that the Pollitts
were entitled to assert that right to an easement.
The Dunns maintain that the trial court erred by
refusing to let them prove that the old county road did before
and does still provide de jure as well as de facto access to the
Pollitts’ land.
This factual dispute, they contend, made summary
judgment inappropriate.
They also maintain that the trial
court’s refusal to consider such evidence bespeaks a
misinterpretation of the law pertaining to easements.
We begin our discussion by reiterating the familiar
rule that a summary judgment is appropriate only if the movant
establishes both that there is no dispute concerning any material
fact and that he or she is entitled to judgment as a matter of
law.
CR 56.03
Kentucky courts are expected to uphold our jury
system by assessing motions for summary judgment from the point
of view of the non-movant and by giving the non-movant the
benefit of every reasonable doubt.
Because such rulings involve
no factual findings but only conclusions of law, this Court’s
review is de novo.
Steelvest, Inc. v. Scansteel Serv. Ctr.,
Inc., Ky., 807 S.W.2d 476 (1991).
The Dunns maintain that the trial court erred by
concluding that the Pollitts had established the implication of
an easement from necessity.
We agree.
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As our highest Court
observed in Marrs v. Ratliff, 278 Ky. 164, 128 S.W.2d 604, 609
(1939),
[a] way from necessity is an easement founded
on an implied grant or reservation and is an
application of the principle that wherever
one party conveys property, he also conveys
whatever is necessary to the beneficial use
of that property, and retains whatever is
necessary to the beneficial use of land he
still possesses; but it must be a way of
strict necessity; mere convenience will not
do. [internal quotation marks and citations
omitted].
The Pollitts’ cause of action, therefore, required them to prove
that they lacked a means of entering and leaving their property
that is both legally secure and physically reasonable.
Holbrook
v. Taylor, Ky., 532 S.W.2d 763 (1976); Bob’s Ready to Wear, Inc.
v. Weaver, Ky. App., 569 S.W.2d 715 (1978).
They were required
to prove that the old county road, the means of accessing their
lot since its formation in 1972, was either not legally secure or
was for some other reason unsuitable.
They asserted, and the
trial court agreed, that it was not legally secure because the
Commonwealth had abandoned this portion of the road in the
1930's, and by so doing had extinguished the general public’s
right to use it.
The Dunns point out, however, first, that the ceasing
of governmental maintenance does not necessarily imply the
closing of a public easement.
See Sarver v. County of Allen,
Ky., 582 S.W.2d 40 (1979) (discussing the complex relationship
between government roads, established by appropriate procedures,
and public roads, often established by use); Marrs v. Ratliff,
supra.
Second, they argue that, even if this portion of the old
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county road ceased to be a public easement, a private easement
for the benefit of the Pollitts’ tract may have arisen in some
other way, such as by prescription or estoppel.
Taylor, supra.
Holbrook v.
Summary judgment is thus premature, they insist,
because the record clearly raises a genuine issue concerning the
Pollitts’ right to cross the Board of Education’s land on the old
road.
The Pollitts had not sued the Board of Education, and
when the Dunns’ response implicated it, a question arose as to
whether the Board was a necessary party.
The Dunns insisted it
was because a full determination of the Pollitts’ rights would
require a Board response.
At first, the trial court agreed with
the Dunns and ordered that the Board be added as a party.
It
later rescinded this order, however, and ruled that the Board
could be joined by motion of either party, but that the Pollitts
were not required to add the Board to their complaint.
Eventually, the Pollitts did join the Board, but apparently only
as a matter of strategy, for they had made abundantly clear their
desire to use the Dunns’ property instead of the Board’s.
Not
surprisingly, therefore, even though they joined the Board, the
Pollitts made no attempt to prove that they have a right to use
the Board’s land.
When the Dunns did attempt to enter such
proof, the evidence was excluded on the ground that the Dunns had
failed to file their own pleading against the Board and had no
standing to proceed under the Pollitts’ pleading.
The trial court’s reasons for deeming the Board a
nonessential party do not appear in the record, but the School
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Board’s brief argues that because the Pollitts can not be forced
to bring a claim against it and because the Dunns do not have
standing to assert the Pollitts’ interests, the court had no
alternative but to dismiss the Board from the case.
This
reasoning misconceives the nature of the Pollitts’ complaint.
As noted above, there is a presumption against
encumbering property with easements not expressly provided for in
deeds.
The Pollitts bear the burden of proving the necessary
implication of the easement they have asserted.
Where, as here,
the record includes evidence strongly suggesting the existence of
an alternative easement, the plaintiffs’ burden of proof requires
them to show that the alternative does not exist.
The Dunns, of
course, have the right to prove that it does, not as an assertion
of the Pollitts’ rights, but as a denial of the duty asserted
against them.
Standing is not the question.
Standing concerns a
party’s right to initiate an action, and to invoke the court’s
jurisdiction.
433 (1994).
Kraus v. Kentucky State Senate, Ky., 872 S.W.2d
The Dunns do not seek to initiate an action; they
are obliged to respond to one.
The question, as correctly raised by the Dunns, is one
of joinder: whether a determination of the Pollitts’ rights visa-vis the Dunns can be fully adjudicated without joinder of the
Board.
Because resolution of the issue between the Pollitts and
the Dunns will require a determination of the Pollitts’ right to
use the Board’s land, and will thus require that the Board be
given an opportunity to respond, the Board of Education is a
necessary party to this action.
CR 19.01.
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Board. of Educ. of
Fayette County v. Taulbee, Ky., 706 S.W.2d 827 (1986).
The trial
court erred by ruling otherwise.
It is apparent from what has already been said that the
trial court also erred by granting summary judgment against the
Dunns.
The Dunns have raised a genuine issue of material fact
concerning the existence of an alternative means of ingress to
and egress from the Pollitts’ lot.
Unless this alternative is
disproved, the asserted necessity of an easement across the
Dunns’ lot fails.
Because the trial court deemed this
possibility of an alternative easement irrelevant, a few words on
the subject may be in order.
The trial court seems to have relied primarily upon
Hall v. Coffey, Ky. App., 715 S.W.2d 249 (1986).
In Hall, the
defendant landowner, against whom an easement by necessary
implication had been asserted, resisted the complaint by arguing
that the easement’s necessity had not been proved.
It was true,
the defendant conceded, that the plaintiff was landlocked.
The
easement had not been shown to be necessary, however, because one
of the plaintiff’s neighbors was his son who would permit the
plaintiff to cross his land.
The Court rejected this defense.
The possibility of permissive arrangements with third parties,
the Court held, was irrelevant to the question concerning the
plaintiff’s rights.
Based on Hall, the trial court apparently concluded
that the Dunns could not rely for their defense on the
possibility that the Pollitts might have permissive access across
a third-party’s land.
Hall, however, does not apply here.
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Unlike the defendant in Hall, the Dunns do not concede that the
Pollitts are legally landlocked, and they do not assert merely
that the Board of Education will permit the Pollitts to continue
using the old county road to reach their lot.
They assert,
instead, that the Pollitts have a right to such use, a right
arising either from a continuing public easement along the old
county roadway or a private easement along the same course.
The
existence of such a right, which has yet to be determined, is
decidedly relevant to the Pollitts’ claim.
The difference between Hall and this case can be put
into sharp relief, we believe, by noting the following
observation from Bob’s Ready to Wear v. Weaver, 569 S.W.2d at
718, another case cited by the trial court.
The Court was
addressing whether an easement should be implied from an alleged
necessity and said,
the use sought to be imposed upon the
servient tract for the benefit of the
dominant tract must have been initiated when
both tracts were the property of a common
owner. Once common ownership is established
and the particular use is found to have been
initiated prior to severance, the
determination whether the creation of an
easement was intended will depend upon a
number of [other] factors. [Citations
omitted].
In Hall, the use the plaintiff sought to impose on the servient
tract had been initiated long prior to severance and with the
defendant’s full knowledge and acquiescence.
Here, on the other
hand, the Pollitts seek to impose a novel use on the Dunns’
tract.
If they can show that, at the time the Dunns’ lot was
severed from the rest of lot 18, the parties to that transaction
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were, or should have been, aware of the need for that use, and if
they can prove a genuine continuing need for that use, they may
well be entitled to the easement they seek.
Their burden of
proof, however, extends to disproving the alternative which the
record plainly suggests.
The trial court erred by relieving them
of that burden.
Accordingly, we affirm that portion of the January 21,
1997, judgment of Campbell Circuit Court which amends the
boundary description of the Pollitts’ tract, and we reverse that
portion which grants the Pollitts an easement over property owned
by the Dunns.
The matter is hereby remanded to Campbell Circuit
Court for additional proceedings consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR MYRA F. POLLITT AND
RANDY E. POLLITT APPELLEES:
James L. Cobb
Covington, Kentucky
Edward C. Lanter
Summe & Summe
Fort Wright, Kentucky
BRIEF FOR THE CAMPBELL COUNTY
BOARD OF EDUCATION:
Kenneth E. Rylee, Jr.
Edmondson, Guenther & Rylee
Covington, Kentucky
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