DAVID TURNER; and LINDA TURNER v. HOWARD LEE; and LEONA LEE
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RENDERED: May 5, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-003101-MR
DAVID TURNER; and LINDA TURNER
v.
APPELLANT
APPEAL FROM MARION CIRCUIT COURT
HONORABLE DOUGHLAS M. GEORGE, JUDGE
ACTION NO. 97-CI-000201
HOWARD LEE; and LEONA LEE
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, McANULTY AND SCHRODER, JUDGES.
McANULTY, JUDGE.
Appellants, David Turner and Linda Turner,
appeal from an order of the Marion Circuit Court entered on
September 4, 1998, which granted partial summary judgment in
favor of the appellees, Howard Lee and Leona Lee, with regard to
the joint ownership of a 16-foot roadway located between the
parties’ properties.
After reviewing the record, we affirm.
The appellants and appellees own adjoining tracts of
land in Marion County, Kentucky.
Originally, their properties
were part of a larger tract owned by Milestus Simpson.
In 1888,
Milestus Simpson’s property was divided into 12 tracts as part of
the settlement of his estate.
The 1888 Commissioner’s Report
containing the property division and plat also provided the
following:
We also allot to the owners of lots no. 2-3-4-5-6-7-89-10-11-12- a passway 16 feet wide as shown on the plat
herewith submitted as a part of the report - marked
plat. Said road or passway forms the east boundary of
lots no. 2-3-4-5-6-7-8- and the west boundary of lots
no. 10-11-12-. Said road begins near a white oak - at
the northwest corner of no. 9- and runs northwardly as heretofore described and shown on Plat - terminating
at the northeast corner of no. 2. Said Road to be
owned jointly by all of said parties and their
successors for a Road for their use and benefit as
suchIn December 1960, the appellees purchased a majority of the
property formerly owned by Milestus Simpson and described in the
1888 Commissioner’s Report, with the exception of lot 8 and lot
10.
The property described as lot 10 was purchased by the
appellants in November 1995, while the appellees subsequently
purchased lot 8 from Oliver Garrett in June 1997.
In 1997, the appellees, in anticipation of selling
their property, commissioned F.A. Edwards and Associates to
survey their land.
In addition, the appellees placed gravel
along the roadbed that existed between the parties’ property.
At
that time, appellants placed obstacles in the roadway and
informed the appellees that they were no longer allowed to use
it.
On September 23, 1997, the appellees filed a complaint in
Marion Circuit Court requesting the court to determine the status
of the parties ownership of the roadway between the properties.
The appellants answered the complaint and filed a counterclaim
asserting ownership to the roadway and seeking damages for
conversion.
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On February 19, 1998, the appellees filed a motion for
partial summary judgment.
On September 4, 1998, the circuit
court determined that the parties did in fact jointly own the 16foot roadway, that any improvements thereto could be made at the
expense of the party seeking the improvements as long as it did
not affect the other joint owners’ use of their property, and
that the appellants were permanently enjoined from blocking or
inhibiting the use of the roadway by the appellees and/or their
successors-in-title.
The
appellants then moved the court to
alter, amend or vacate the judgment.
the motion on November 12, 1998.
The circuit court denied
This appeal followed.
The standard of review of a summary judgment on appeal
is whether the trial court correctly found that there was no
genuine issue as to any material fact and that the moving party
was entitled to judgment as a matter of law.
CR 56.03.
"The
record must be viewed in the light most favorable to the party
opposing the motion for summary judgment and all doubts are to be
resolved in his favor."
Steelvest, Inc. v. Scansteel Service
Center, Inc., Ky., 807 S.W.2d 476, 480 (1991).
Summary judgment
is "only proper where the movant shows that the adverse party
could not prevail under any circumstances."
Steelvest, supra at
480, citing Paintsville Hospital Co. v. Rose, Ky., 683 S.W.2d 255
(1985).
On appeal, appellant argues that summary judgment was
not proper because there were factual questions regarding the
exact location of the 16-foot roadway and the circuit court
failed to consider whether the appellants had acquired title to
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the property by deed or adverse possession, or whether appellants
had acquired a right to keep the property as it was by
prescriptive easement.
The record establishes that both parties chain of
title can be traced back to the Commissioner’s deed of 1888,
which provided for a jointly owned 16-foot passway that formed
the eastern boundary of lots 2 through 8 and the western boundary
of lots 10 through 12.
Mr. Lee testified by deposition that he
has utilized the roadway for approximately 44 years to haul hay,
hunt, and visit Oliver Garrett.
During that time, he stated that
no one questioned the use of the road.
Oliver Garrett, by
affidavit, stated that he used the roadway in dispute as the sole
means of ingress and egress to his property from 1976 to 1997.
Mr. Garrett also reviewed the survey prepared by F.A. Edwards and
opined that it depicted the roadway in approximately the same
location as the one he used.
Appellants contend that they have acquired title to the
16-foot passway by adverse possession and/or possess an easement
by prescription through the open, continuous, adverse, notorious,
and actual possession of said passway for the previous 15 years.
Appellants contention is wholly unsupported and without merit.
Carl Alan Spalding, the former owner of lot 10 who sold the
property to appellants in 1995, stated that he was aware of the
existence of the roadbed at the western boundary of the property
and that he knew the appellees and Oliver Garrett openly used the
road as a necessary means of ingress and egress.
He also
believed that appellees and Oliver Garrett had an absolute right
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to utilize the roadway during the time he owned the property.
Appellants have failed to produce any evidence of adverse
possession or the possession of an easement.
Finally, appellants argue that the circuit court erred
in allowing the appellees to make improvements upon the roadway.
Appellants contend that a joint owner of property does not have
the right to convert the property into something that primarily
benefits one owner over the other.
Apparently, the appellants
would prefer that the roadway be used as part of their yard
rather than a road.
However, it is well established that when
two or more persons own an undivided interest in property, known
as a tenancy in common, each is entitled to the use and
possession of the entire property.
S.W.2d 676, 678 (1992).
Sanderson v. Saxon, Ky., 834
Appellants have not produced any
evidence that they have been prevented from using the road or
that the placing of gravel has somehow diminished the value of
the property.
As for the improvements, the circuit court determined
that the appellees could elect to improve the roadway at their
own expense.
Any maintenance expenses incurred thereafter should
be borne by both parties, provided that they do not exceed the
normal maintenance required of a farm road.
Continued use of the
passway as a road is entirely consistent with the original 1888
Commissioner’s deed.
It also logically follows that improvements
and maintenance would be required from time to time to ensure
that the roadway is passable by modern modes of transportation.
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Rose v. Holbrook, Ky., 287 S.W.2d 914 (1956); Sizemore v. Hurt,
313 Ky. 19, 230 S.W.2d 65 (1950).
For the reasons stated above, the order of the Marion
Circuit Court granting partial summary judgment in favor of
appellees is hereby affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Samuel Todd Spalding
Lebanon, Kentucky
Joseph H. Mattingly III
Lebanon, Kentucky
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