LAWRENCE BORNE v. EDGAR BENNETT, JR.
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RENDERED: December 29, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002292-MR
LAWRENCE BORNE
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE WILLIAM L. GRAHAM, JUDGE
ACTION NO. 97-CI-00414
v.
EDGAR BENNETT, JR.
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, MILLER AND SCHRODER, JUDGES.
JOHNSON, JUDGE.
Lawrence Borne has appealed from a judgment of
the Franklin Circuit Court entered on September 3, 1999, in a
declaration of rights action filed by appellee Edgar Bennett,
Jr., as a result of an easement dispute.
Having concluded that
the judgment which permits Bennett, as owner of the dominant
tenement, to modify an existing passway over the servient
tenement, owned by Borne, so as to permit Bennett
ingress and
egress to his property by automobile is not erroneous, we affirm.
Bennett filed his petition for declaration of rights on
March 12, 1997.
1999.
A trial before the court was held on June 30,
On September 3, 1999, the trial court entered a judgment
granting Bennett’s petition to modify an existing passway over
Borne’s property.
The trial court’s findings of fact in the case
are summarized below.
In March 1996, Bennett acquired a tract of land
comprising approximately 77 acres in northern Franklin County
near U.S. Highway 421 (Bennett tract).
The Bennett tract adjoins
a 198.49 acre tract, owned by Lawrence Borne (Borne tract).
Borne acquired his tract, in partnership with his father, in
February 1973.
The Borne tract has frontage on U.S. Highway 421,
while the Bennett tract has no frontage or direct access to any
public road.
Each party’s chain of title includes references to a
“road or passway” which provides the Bennett tract with access
from U.S. Highway 421 through the Borne tract.
Since 1955, the
deeds in the Bennett tract chain of title have contained a clause
conveying “all right, title and interest in and to the road or
passway, including the land used in connection therewith, leading
from the premises hereinabove described to Highway 421.”
Since
1973, the deeds in the Borne tract chain of title, with one
exception,1 have contained the following reservation: “Said land
is conveyed subject to all existing easements on and across the
same appearing of record, and also the passway (which is not
recorded) from US 421 to the lands of Newton Hoover.”2
1
The deeds
The exception is the last deed in the chain of title from
Borne’s parents to Borne. Borne concedes that the omission of
the passway in this deed was a mistake.
2
Newton Hoover previously owned the Bennett tract.
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do not describe the dimensions or the location of the passway or
restrict its use.
The location of the existing passway is undisputed.
It
is a narrow, unpaved, ungraveled passage that runs from U.S.
Highway 421 along the southern boundary of the Borne tract to
Flat Creek.
The passway enters Flat Creek, makes a 90 degree
turn to the north (right) into the bed of Flat Creek where it
runs approximately 100 feet, then it comes out of the creek bed
to the southwest and up to the Bennett tract near a large walnut
tree.
In the past, use of the passway has been limited to farm
equipment, logging equipment, and four-wheel drive vehicles.
The
passway is not adequate for automobile use, particularly in the
creek bed.
Flat Creek is a blue line stream in which there is
often water, ice, or rough terrain.
There has not been a house on the Bennett tract since
at least the 1930’s; however, Bennett now desires to build a
house on the tract to be used as his residence.
He has already
constructed a barn on his property.
Upon his acquisition of the property, Bennett
approached Borne about conveying an easement to facilitate access
to the Bennett tract through a new and improved route on the
north end of the Borne tract (the north entrance).
Borne agreed
to the new route with certain stipulations as to Bennett’s
liability for construction and maintenance of the roadway and
bridges.
Bennett hired Robert Semones, a surveyor, to survey a
route for improved access using the north entrance.
Subsequently, Bob Tillett of the State Highway
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Department informed Bennett that the proposed new north entrance
off U.S. Highway 421 did not meet Highway Department standards
for sight distance, and that he would not recommend that a permit
be issued.
Bennett did not appeal the Highway Department’s
decision that the north entrance would not meet state sight
distance requirements.
According to the findings of the trial
court, Bennett abandoned the proposed north entrance because 1)
it would require him to construct an additional roadway around
the edge of a steep hill for approximately one-fourth mile; 2) it
would require him to construct a $20,000.00 bridge across Flat
Creek, as compared with the $2,000.00 to $2,500.00 cost of the
low-water crossing and pipe; 3) it would require him to fill a
large low area between U.S. Highway 421 and Flat Creek; 4) it
would require him to construct a road on the northern-most
portion of the Borne Tract which is most susceptible to flooding;
and 5) the proposed entrance would be unsafe as it would not meet
Highway Department sight distance requirements.
Following the negative developments regarding the north
entrance, Bennett proposed to improve the existing passway in
order to facilitate ingress and egress by automobile.
Bennett’s
proposed improvements to the passway would require a low-water
crossing across Flat Creek and a large pipe or culvert in a
second creek.
It was stipulated by the parties that Bennett has
obtained the necessary Highway Department permits and approvals
for these proposed improvements.
Gary Poole, a civil engineer and drainage expert,
testified for Bennett concerning the effect of the proposed low-
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water crossing on the Borne Tract.
His testimony was that there
would be a minimal impact on the severity of flooding in a 100year flood on Borne’s large tobacco patch, which adjoins U.S.
Highway 421.
He testified that there are two primary sources of
flooding to the Borne tract.
The first is located to the south
of the Borne tract on adjoining property, and the other is
backwater created during heavy rains and originates at the point
where Flat Creek and Goose Creek converge.
Poole testified that
the proposed passway improvements would have no effect on the
existing flooding conditions, and this testimony was
uncontroverted.
Poole did not study the impact of the proposed
north entrance versus the impact of the proposed improvements to
the existing point of access at the south end of the large
tobacco patch.
He testified that the minimal increase in
flooding from the low water crossing over Flat Creek would be to
the south and west.
The parties’ deeds do not state the width of the
passway.
Semones testified that the width of the existing
passway where it crosses the Borne tract near the southern end of
Borne’s large tobacco patch ranges from 10 to 20 feet.
Bennett
seeks to expand the existing passway to 20 feet between U.S.
Highway 421 and Flat Creek.
Semones testified that a passway
width of 20 feet was generally required by the planning and
zoning ordinance for any minor subdivision plat where the
property to be served by the easement has no road frontage.
Bennett testified that he has no intention of subdividing the
Bennett Tract.
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The 20-foot proposed passway runs along a fence that
divides the Borne tract from the adjoining property to the south.
Semones testified that the distance from the fence to the edge of
the plowed tobacco field varies from 23 to 26 feet, and Bennett
testified that it is 29 feet from the fence to the nearest
tobacco plant.
The proposed easement does not touch the actual
tobacco plants themselves, but does encroach on the plowed field.
Furthermore, there was no proof that Borne would lose any
marketable timber as the result of the new passway; however,
construction of the low-water crossing may prohibit Borne from
driving his tractor down the bed of Flat Creek to the south to
access other portions of his property.
Borne first contends on appeal that the trial court
erred as a matter of law ”by expanding, altering, rerouting,
enlarging, and modifying the nature of use and construction of
the easement over the Borne tract.”
We disagree.
“The owners of
the easement and the servient estate have correlative rights and
duties which neither may unreasonably exercise to the injury of
the other.”3
“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.
The nature and extent of an easement
must be determined in light of its purposes.”4
“Easements may
3
Commonwealth, Department of Fish & Wildlife Resources v.
Garner, Ky., 896 S.W.2d 10, 13 (1995) (citing Higdon v. Kentucky
Gas Transmission Corp., Ky., 448 S.W.2d 655 (1969)).
4
Id. (citing Horky v. Kentucky Utilities Co., Ky., 336
S.W.2d 588 (1960); Farmer v. Kentucky Utilities Co., Ky., 642
S.W.2d 579 (1982); and Thomas v. Holmes, 306 Ky. 632, 208 S.W.2d
969 (1948)).
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not be enlarged on or extended so as to increase the burden on or
interfere with the servient estate.”5
“However, the owner cannot
unreasonably interfere with the rights of the holder of the
easement.”6
The deeds to the Borne tract and the Bennett tract do
not describe the location, dimensions, or restrictions regarding
the use of the passway.
“In such circumstances, reason and
authority dictate that the rights obtained by the dominant owner
are those necessary for the reasonable and proper enjoyment of
the easement.”
“By parity of reasoning, the owner of the
servient estate retains the right of full dominion and use of his
land, except so far as a limitation of his right is essential to
the fair enjoyment of the easement.”7
“‘Generally, the rule has been established that if an
easement is granted or reserved in general terms which do not fix
its location the owner of the servient estate has the right in
the first instance to designate the location of the easement.
The right, however, must be exercised in a reasonable manner with
due regard to the rights of the owner of the dominant estate.’”8
5
Id. (citing City of Williamstown v. Ruby, Ky., 336 S.W.2d
544 (1960)).
6
Id. (citing Ball v. Moore, 301 Ky. 779, 193 S.W.2d 425
(1946) and Smith v. Price, 312 Ky. 474, 227 S.W.2d 981 (1950)).
7
Blair v. City of Pikeville, Ky., 384 S.W.2d 65, 67
(1964)(citing Maxwell v. McAtee, 9 B.Mon. (48 Ky.) 20; 28 C.J.S.
Easements § 75; Horky v. Ky. Utilities Co., Ky., 336 S.W.2d 588;
17A Am.Jur., Easements, § 112; Vol. 3, Tiffany on Real Property,
3rd Ed., § 803).
8
Id. (quoting Louisville & N. R. Co. v. Pierce, Ky., 254
S.W.2d 943 (1953)).
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“Thus, [it] may be said that the rights and duties of the
dominant and servient owner are correlative; neither may
unreasonably exercise rights to the injury of the other.”9
If the location of an easement is not selected by
either the servient or the dominant owner and they cannot agree
upon a location of the easement, a court of equity has the power
affirmatively and specifically to determine the location of the
servitude.10
We review a trial court’s adjudication of an
easement issue under the abuse of discretion standard.11
The easement at issue in this case had been previously
defined, and it is undisputed that the passway created pursuant
to the easement is a narrow, unpaved, ungraveled passage suitable
for farm equipment, logging equipment, and four-wheel drive
vehicles, but not for use by an automobile.
Bennett’s major
objective, it would appear, is to improve the passway so that it
would be able to accommodate an automobile, apparently in
anticipation of the future construction of a home on the Bennett
tract.
A passway has never been established in regard to the
easement at a location that is suitable for ingress and egress by
automobile.
The present passway follows a path that passes down
a blue line stream; i.e., a stream of sufficient significance so
as to be shown as a blue line on the topographic maps published
9
Id. (citing Central Ky. Natural Gas Co. v. Huls, Ky., 241
S.W.2d 986 (1951), and 28 A.L.R.2d 621).
10
Potter v. Colvin, Ky., 303 S.W.2d 552, 553 (1957).
11
Stewart v. Compton, Ky.App., 549 S.W.2d 832, 834 (1977).
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by the United States Department of Interior Geological Survey.
We agree with the trial court that the change in the passway that
Bennett seeks is within the nature and scope of the easement as
provided for in the deeds.
The present passway does not permit
Bennett to access his property by means of an automobile, and,
consequently does not confer him with a right necessary for the
reasonable and proper enjoyment of the easement.12
In summary, the findings of the trial court in support
of its ruling were not clearly erroneous, and the trial court did
not abuse its discretion in its determination that Bennett was
entitled to a declaration of rights that he was entitled to
improve the passway so as to permit him to have access to his
property by automobile.
Next, Borne contends that the trial court was clearly
erroneous in finding that he unreasonably attempted to restrict
Bennett’s access to the Bennett tract.
In this regard, the trial
court stated that
the Court finds that Borne has unreasonably
attempted to restrict Bennett’s access to his
property. The alternative means of ingress
and egress to which Borne agreed, the north
entrance, has been shown not only to be
prohibitively expensive and burdensome, but
also in all likelihood not even possible
given the testimony of Mr. Tillett from the
Highway Department.
12
Blair, supra. See also Elam v. Elam Ky., 322 S.W.2d 703
(1959)(Court acknowledged the owners of dominant estate have
right to make passway suitable for customary forms of
transportation) and Newberry v. Hardin, Ky., 248 S.W.2d 427
(1952) (Court allowed change sought by dominant owner to make
passway suitable for automobile use.)
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"Findings of fact 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."13
Findings of fact are not clearly erroneous if supported by
substantial evidence.14
The test for substantiality of evidence
is whether when taken alone, or in the light of all the evidence,
it has sufficient probative value to induce conviction in the
mind of a reasonable person.15
Borne was agreeable to the construction of a northern
passway which would have permitted Bennett access to his tract by
automobile; however, the record discloses that there were
financial and regulatory impediments to that plan.
Since Borne
refused to comply with Bennett’s request to upgrade the passway
to a condition suitable for the passage of an automobile, we do
not believe the trial court’s finding that Borne unreasonably
attempted to restrict Bennett’s access to his tract was clearly
erroneous.
Finally, Borne contends that Bennett failed to exhaust
his administrative remedies and is therefore barred from
asserting his rights in a court of equity.
Specifically, Borne
argues that Bennett’s circuit court action is premature because
he failed to appeal the denial by the Department of Highways of a
permit for the opening of the northern entrance.
13
Kentucky Rules of Civil Procedure 52.01.
14
See Black Motor Co. v. Greene, Ky., 385 S.W.2d 954 (1965).
15
Kentucky State Racing Commission v. Fuller, Ky., 481
S.W.2d 298, 308 (1972); Janakakis-Kostun v. Janakakis, Ky.App., 6
S.W.3d 843, 852 (1999).
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“The principle is well settled that a litigant will
ordinarily be required to exhaust his administrative remedies
before resorting to the courts for relief.”16
However, we agree
with the trial court that Bennett was not required to pursue an
administrative remedy before bringing this declaration of rights
action, because he is seeking to make a determination as to
property rights vis-a-vis himself and Borne, which is a circuit
court matter.
Bennett’s declaration of rights lawsuit is
entirely separate from the administrative proceedings regarding
the northern entrance, and, further, does not involve an
administrative agency decision.
For the foregoing reasons the judgment of the Franklin
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Bruce L. McClure
Covington, KY
Earl S. Wilson, Jr.
Lexington, KY
16
Tharp v. Louisville & N.R. Co., 307 Ky. 322, 210 S.W.2d
954, 955 (1948).
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