FOLMER STARR AND HIS WIFE, NAOMI STARR v. WILLIAM EAVES AND HIS WIFE, BRENDA EAVES; RAY MICHAELS AND HIS WIFE, JANE MICHAELS; LUCIAN K. RATLIFF; RON JOHNSTON AND HIS WIFE, SHARON JOHNSTON; MR. AND MRS. PASCAL DUNHAM BOX; RICHARD MELTON; MS. ROLANDE HOLT; AND MR. JOHN HOLT
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RENDERED: December 15, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000098-MR
FOLMER STARR AND HIS WIFE,
NAOMI STARR
v.
APPELLANTS
APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE CHARLES W. BOTELER, JR. JUDGE
ACTION NO. 94-CI-00716
WILLIAM EAVES AND HIS WIFE,
BRENDA EAVES; RAY MICHAELS
AND HIS WIFE, JANE MICHAELS;
LUCIAN K. RATLIFF; RON
JOHNSTON AND HIS WIFE,
SHARON JOHNSTON; MR. AND MRS.
PASCAL DUNHAM BOX; RICHARD MELTON;
MS. ROLANDE HOLT; AND MR. JOHN HOLT
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, JOHNSON, AND MILLER, JUDGES.
BUCKINGHAM, JUDGE:
Folmer and Naomi Starr (hereinafter
appellants) again appeal from a judgment of the Hopkins Circuit
Court rendered in favor of William and Brenda Eaves, Ray and Jane
Michaels, Lucian K. Ratliff, John Holt, Richard Melton, Rolande
Holt, Mr. and Mrs. Pascal Dunham Box, and Ronald and Sharon
Johnston (hereinafter appellees).
The main issue involves
whether the trial court erred in determining that there was not a
common-law dedication of an old roadbed.
We conclude the
findings of the trial court were not clearly erroneous and thus
affirm.
The appellants are owners of a tract of property in
Hopkins County which is “landlocked.”
After contracting for the
sale of timber rights on their property, they attempted to
improve an old roadbed which traversed the appellees’ properties.
Their attempts consisted of having a bulldozer clear trees and
underbrush and fill in gullies and washes in the roadbed.
When
the appellees denied the appellants the use of the roadbed, the
appellants filed an action in the Hopkins Circuit Court.
On March 27, 1997, the trial court entered its initial
judgment in favor of the appellees, from which the appellants
made their first appeal.
Therein, the trial court determined
that the roadbed was not a county road, that the public had not
acquired a prescriptive easement since the roadbed had been
abandoned, that the appellants’ predecessor in title had never
acquired an easement but had only a license to use the road, and
that the appellants were not entitled to an easement by
necessity.
On appeal, this court affirmed the trial court’s
determination that the roadbed was not a county road and that the
appellants were not entitled to an easement by necessity.
However, this court vacated the trial court’s ruling that any
prescriptive easement obtained had been abandoned and remanded
the matter to the trial court “to determine whether the doctrine
of dedication applies to cause a public use of the roadbed in
question, and whether any such use created has been
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discontinued.”
See Starr v. Eaves, 1997-CA-000948-MR, rendered
November 6, 1998.
In remanding the matter, this court found that
the trial court had neither addressed the issue of dedication nor
made any findings in that regard.
On remand, the trial court held as follows:
In an analysis as to whether the
application of the doctrine of dedication
results in a public use of the roadbed, the
Court relies on the language of Freeman v.
Dugger, Ky., 286 S.W.2d 894 (1956). In
Freeman, the Court of Appeals stated that the
main question in a dedication case is whether
there was a general and continued use so as
to create an estoppel and acceptance. In the
present situation, the Court does not believe
that the evidence is sufficient to prove
there was a general and continued use. No
witness could testify to public use of the
roadbed since the 1940’s or 1950’s. The
roadbed was grown up with weeds and trees and
was virtually impassable to the general
public. Furthermore, the roadbed was
considered abandoned in deed books and was
not on survey maps. While some witnesses
have testified to horseback and four wheel
drive vehicle traffic, the Court does not
believe that such random, limited, and
episodic use is sufficient to establish a
general and continued use. According to the
case of Commonwealth of Kentucky, Department
of Highways v. W[y]nn, Ky., 396 S.W.2d 798
(1965), the sufficiency of the use to show
dedication is a jury question. The Court, as
the finder of fact, does not believe that the
evidence presented is sufficient to find a
dedication. The proof simply does not
establish the general and continued use that
would give the public an interest in the
land, as envisioned by cases such as Freeman.
Because the court determined that there was no public dedication
of the roadbed, it held that the remaining issue concerning
discontinuance of such public use was moot.
This appeal
followed.
The court in the Freeman case held that:
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“It is settled in this state that a general
and long-continued use of a passway by the
public as a right will create the right to
continue the use and the owner of the land
traversed by the passway who allows the
public to use it as a highway for a long
period of years under a claim of right will
be estopped from denying a dedication to the
public. Long-continued user by the public
will constitute an implied acceptance of the
dedication.”
Freeman, 286 S.W.2d at 896, quoting Gardner v. Hope, 248 Ky. 270,
58 S.W.2d 353, 354 (1933).
“Both the intention of the owner to
dedicate and the acceptance by the public may be inferred from
use by the public for a substantial number of years.”
S.W.2d at 800.
Wynn, 396
“If it can be shown that there has been a
continual use for such a length of time as to create an estoppel
and an acceptance, then the dedication is complete.”
Freeman,
supra.
The appellants first argue that the trial court clearly
erred in its determination that there was not a public dedication
of the roadbed.
The evidence from witnesses indicates that at
one time the roadbed was used a means of ingress and egress by
the people who farmed and lived on the adjoining tracts of
property.
There was no testimony that the roadbed had been used
by the public to any extent since at least the 1940’s or early
1950’s.
The roadbed was described in some deeds as an abandoned
roadway, and it was grown up with weeds and trees and was
virtually impassable, a condition indicating a long period of
nonuse by anyone.
The appellants contend that the trial court confused
the doctrine of prescriptive easement and the doctrine of public
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dedication.
Regardless of whether the trial court did so in its
initial judgment, it clearly did not do so when it addressed the
case on remand from this court.
The language employed by the
trial court in its order was clear.
This case was tried by the court without a jury, and
the trial court’s findings of fact shall not be set aside unless
they are clearly erroneous.
See CR1 52.01.
Having examined the
record and the specific findings of the trial court, we conclude
that those findings were not clearly erroneous.
The appellants’ second argument is that the trial
court’s findings pertaining to abandonment were clearly
erroneous.
The trial court declined to address the issue of
abandonment in its last order because the issue was moot.
Because abandonment was no longer an issue, the appellants’
argument is likewise moot.
The last argument raised by the appellants in their
brief is that the trial court erred in its conclusions regarding
their continued right to use an easement originally established
by public dedication.
Because we have determined that the trial
court did not err in its ruling that there was no public
dedication of the roadbed, that argument is likewise moot.
The judgment of the Hopkins Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANTS:
BRIEF FOR APPELLEES EAVES,
MICHAELS AND RATLIFF:
James C. Brantley
Dawson Springs, Kentucky
1
William R. Thomas
Madisonville, Kentucky
Kentucky Rules of Civil Procedure.
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