NELSON COLE AND MARILYN J. COLE v. WILLIAM GILVIN, SHIRLEY GILVIN, DANIEL GILVIN, MICHAEL GILVIN D/B/A THE GILVIN FAMILY PARTNERSHIP
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RENDERED:
October 19, 2001; 2:00 p.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001961-MR
NELSON COLE AND
MARILYN J. COLE
APPELLANTS
APPEAL FROM TODD CIRCUIT COURT
HONORABLE TYLER L. GILL, JUDGE
ACTION NO. 99-CI-00030
v.
WILLIAM GILVIN, SHIRLEY GILVIN,
DANIEL GILVIN, MICHAEL GILVIN
(INDIVIDUALLY), MICHAEL GILVIN,
D/B/A THE GILVIN FAMILY PARTNERSHIP
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, DYCHE AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Nelson Cole and his wife, Marilyn, have appealed
from a final judgment of the Todd Circuit Court entered on June
12, 2000, which held that they have no legal right of way to
their realty over a passway or roadway on the property owned by
the Gilvins.
Having concluded that the trial court properly
found that the Coles had no easement and the passway was not a
public road, we affirm.
In March 1986, the Coles purchased a 35-acre tract of
land from the Farmers Home Administration (FHA) for $76,800.00.
In April 1988, the Gilvins also acquired from the FHA for
$59,000.00 a tract of land which is adjacent to the property
previously purchased by the Coles.
Both tracts had been part of
a larger farm owned by Marion Wells and his wife since the
1940's.
When Marion died in 1970, the property passed to his
wife, Minnie Lee Wells, who died in 1972.
Following the death of Minnie Wells, the farm property
was partitioned and divided among the Wells’ three children,
Polly (Wells) Collins, Christine Rager and John Henry Wells.
In
1981, John Henry Wells transferred his tract of land to his
grand-nephew, Todd Hurt, who was Christine Rager’s grandson.
In
1984, Christine Rager conveyed her tract of land to the FHA; and
in 1985, Todd Hurt conveyed his tract of land to the FHA.
The
Coles purchased the tract previously owned by Christine Rager,
and the Gilvins purchased the tract previously owned by John
Henry Wells and Todd Hurt.
Polly (Wells) Collins retained the
15-acre tract she inherited from her mother.
Shortly after purchasing their property, the Coles
registered their property with the federal government set aside
program which required them to maintain it as grassland.
They
also leased the property to hunters for use during hunting
season.
Meanwhile, William and Shirley Gilvin have not lived on
their property but started building a house there in 1995 in
anticipation of living there in their retirement years.
Instead
of attempting to use the disputed passway which also crosses
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Polly Collins’ property, the Gilvins have constructed a new
roadway connecting their property to Williams Road.
At the time the parties purchased their respective
properties from the FHA, there was a one-lane passway or
“roadway” linking the Coles’ tract with Williams Road, a county
road.
The passway began with a gravel surface traversing the
property of Polly Collins, which abuts Williams Road, then
crossed the Gilvins’ tract until it split into two paths near the
boundary line of the parties’ properties.
At this point, one
path with a gravel surface went to the house built by the
Gilvins; whereas, the second path with a dirt surface went onto
the Coles’ property having only a vague, unclear profile covered
with vegetation.
Nelson Cole had used the passway for access to
his property for viewing the tract before purchasing it and to
mow the grass once a year as required under the set aside
program.
The Gilvins have placed a gravel surface on the passway
from their house to Williams Road, while the Coles have done
nothing to maintain or improve the passway.
In the fall of 1998, after experiencing some vandalism
to their house, the Gilvins placed a locked gate across the
passway that prevented the Coles from using the passway.
On
February 25, 1999, the Coles filed a complaint in the Todd
Circuit Court alleging the existence of a prescriptive easement
and seeking a restraining order prohibiting the Gilvins from
interfering with their use of the passway for ingress to and
egress from their property.
On May 7, 1999, the trial court
conducted a hearing on the motion for a temporary injunction at
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which Nelson Cole and Dan Gilvin testified.
At the end of the
hearing, the trial judge personally viewed the properties and
passway at issue.
On May 20, 1999, the trial court granted the
Coles a temporary injunction allowing limited use of the passway.
After denying the Gilvins’ motion to dismiss or amend the
temporary injunction, the trial court scheduled a trial on the
merits.
On May 5, 2000, the trial court conducted a bench trial
at which the Coles called eleven witnesses including Nelson Cole,
and the Gilvins called six witnesses including Dan Gilvin and
Polly Collins.
Several of the Coles’ witnesses testified that
the passway was used by the general public until the 1940's when
Marion Wells acquired ownership of the various parcels.
Thereafter, members of the Wells family used it primarily for
farming operations.
The Coles also offered testimony that
construction of an alternative roadway would cost approximately
$42,000.00-$44,000.00.1
Nelson Cole testified that the Wells
family did not require permission for the use of the passway and
state and county employees allegedly placed gravel on the passway
periodically.
All of the witnesses testified that no gate was
placed on the passway until the Gilvins did so in 1998.
The Gilvins offered evidence from six witnesses
including Polly Collins, and Shirley and Dan Gilvin.
Polly
Collins testified that the passway was created and available for
the benefit of the Wells family.
1
She stated the passway was not
The alternative road would have to traverse several ravines
onto another tract of land owned by Nelson Cole with access to
another county road known as the Sharon Grove Road.
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used by the general public, but rather was used to assist in
farming operations.
Collins testified that during the period of
her ownership since 1974, neither she nor any government
officials attempted to maintain the passway.
William Harris, a
land surveyor, stated that based on his research the passway has
never been adopted or noted on any official map as a public road.
Another witness testified that an alternative roadway to the Cole
property could be constructed for approximately $6,000.00.
There
also was evidence that none of the deeds involving either the
Cole or Gilvin property reserved an easement or right to use the
disputed passway.
On June 12, 2000, the trial court entered an extensive
17-page final judgment containing findings of fact and
conclusions of law.
In the judgment, the trial court thoroughly
analyzed the three legal theories relied upon by the Coles:
public passway, easement by prescription, and quasi-easement or
easement by implication.
After discussing the history of the two
tracts and the disputed passway, the trial court held that none
of the three legal theories supported the Coles’ claim to a right
of access over the Gilvins’ property.
This appeal followed.
We begin with the standard of appellate review.
Since
this case was tried before the court without a jury, its factual
findings “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.”2
2
A factual finding
CR 52.01. See also Lawson v. Loid, Ky., 896 S.W.2d 1, 3
(1995); and A & A Mechanical, Inc. v. Thermal Equipment Sales,
(continued...)
-5-
is not clearly erroneous if it is supported by substantial
evidence.3
Substantial evidence is evidence of substance and
relevant consequence sufficient to induce conviction in the minds
of reasonable people.4
“It is within the province of the fact-
finder to determine the credibility of witnesses and the weight
to be given the evidence.”5
With respect to property title
issues, the appropriate standard of review is whether the trial
court was clearly erroneous or abused its discretion, and the
appellate court should not substitute its opinion for that of the
trial court absent clear error.6
I.
PUBLIC ROADWAY
The Coles argue that the disputed passway was a public
road.
They state that there was “overwhelming” testimonial
evidence that the passway was used by members of the community at
large either to access homes once located along the passway or
for various other reasons.
They also assert that the passway
2
(...continued)
Inc., Ky.App., 998 S.W.2d 505, 509 (1999).
3
Owens-Corning Fiberglas Corp. v. Golightly, Ky., 976 S.W.2d
409, 414 (1998); Faulkner Drilling Co. Inc. v. Gross, Ky.App.,
943 S.W.2d 634, 638 (1997); Uninsured Employers’ Fund v. Garland,
Ky., 805 S.W.2d 116, 117 (1991).
4
Golightly, 976 S.W.2d at 414; Janakakis-Kostun v.
Janakakis, Ky.App., 6 S.W.3d 843, 852 (1999)(citing Kentucky
State Racing Commission v. Fuller, Ky., 481 S.W.2d 298, 308
(1972)).
5
Garland, 805 S.W.2d at 118.
6
Church & Mullins Corp. v. Bethlehem Minerals Co., Ky., 887
S.W.2d 321, 323 (1992), cert. denied, 514 U.S. 1110, 115 S.Ct.
1962, 131 L.Ed.2d 853 (1995).
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(roadway) was repaired and/or improved by government employees by
spreading gravel on it.
The trial court stated that although there was some
evidence of public use of the passway, the evidence was too weak
to make an affirmative finding that the passway qualified as a
public road.
It noted that there was no indication on any map
that the passway was a public road.
In Freeman v. Dugger,7 the Court stated:
“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 use[ ] by the public
will constitute an implied acceptance of the
dedication.”8
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.9
A roadway may become a public
road upon general public use and control and maintenance by the
government for 15 years.10
The Coles rely on the case of Whilden
v. Compton,11 which held that “a public road can also be
7
Ky., 286 S.W.2d 894 (1956).
8
Id. at 896 (quoting Gardner v. Hope, 248 Ky. 270, 58 S.W.2d
353, 354 (1933)).
9
Commonwealth, Department of Highways v. Wynn, Ky., 396
S.W.2d 798, 800 (1965).
10
Watson v. Crittenden County Fiscal Court, Ky.App., 771
S.W.2d 47, 48 (1989).
11
Ky.App., 555 S.W.2d 272 (1977).
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established [under a theory of dedication by estoppel] by
general and long continued use of a passway by the public.”12
In
Whilden, the Court referred to several facts that support the
finding of a public road in that case such as use of the roadway
by residents along the roadway, use by customers of a resident
who ran a blacksmith shop, repair and annual grading of the
roadway by the county, and use for mail service to residents.
In the case sub judice, the evidence of public use
consisted of testimony from a few witnesses for the Coles that
the passway had been used by the general public for access to
Whipplewill Creek and surrounding property for hunting and
fishing.
Some of the witnesses also stated that several
families had lived along the passway, but they identified only a
few, who had left the area prior to the 1940's.
Moreover, Polly
Collins testified that the passway was never used for mail
service and that the mailboxes for the tenant families living on
the Wells farm were maintained at the local grocery store.
She
also stated that the county did not supply gravel or grading for
the passway, which was supported by testimony from the local
magistrate.
The Coles’ reliance on Whilden is misplaced.13
The
sporadic use of a passway by a few neighbors or members of the
general public does not turn it into a public road.14
Therefore,
the trial court was not clearly erroneous in finding that the
12
Id. at 274.
13
See also Cummings v. Fleming County Sportsmen’s Club,
Inc., Ky., 477 S.W.2d 163 (1972).
14
See Clark v. Cunning, 302 Ky. 779, 196 S.W.2d 609 (1946).
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Coles had failed to establish that the use of the disputed
passway was of sufficient nature or frequency to justify
establishing it as a public road.
In addition, the trial court held that even assuming
the passway was considered a public road at some point, the
evidence indicated that it had been abandoned by the early
1940's.
The trial court stated:
Even if it were assumed that road was at one
time public, the facts clearly indicate that
it was completely abandoned as such by the
early 1940's. There is little or no evidence
of a public use of the road since that time.
The use of a road on a privately owned farm
by resident tenants, tenant employees or
tenant farmers or their employees does not
constitute use by the public. Neither does
the use of a road by guest or invitees of the
owners constitute public use of the road.
From the early 1940's until 1970 the
only use of the road was for access to the
private property of Marion Wells and the
homes of his various tenants. From 1970 to
1984 the road serviced only the land of his
children and his great grandson.
The conclusions of some witnesses that
the road was “public” are based upon their
seeing others and assuming that they did not
have permission. In reaching their
conclusions they may not have considered the
family relationship of the owners of the
tracts and the lack of any legitimate
destinations along the road which might
benefit the “public.” The road led nowhere
except to Marion Wells’ field.
It can be assumed that, as with any
rural property, there may have been
occasional hunters or fishermen who
trespassed without express or implied
permission but there is no evidence that this
type of incident was more frequent than as
occurs upon any other rural property or was
so frequent or pervasive so as to amount to
public use. Other than to assist in farming
operations or to visit the owners of the
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three properties or their tenants, or to hunt
or fish, there was simply no place for the
“public” to get to using this road since the
early 1940's.
In Sarver v. County of Allen,15 the Court held that
non-use of a public road for over 15 years constitutes an
abandonment of that status.
Additionally, it indicated that
travel on the roadway for access to private residences and acts
by county officials in improving or maintaining a road do not
constitute a continued public use sufficient to negate
abandonment.16
There was sufficient evidence to support the
trial court’s finding that the passway had not been used as a
public road in excess of 15 years and thus had been abandoned.
II.
PRESCRIPTIVE EASEMENT
The second theory addressed by the trial court and
raised in the complaint is easement by prescription.
The law of
prescriptive easements is derived from the principles underlying
adverse possession of property interests generally.17
As a
general matter, in order to obtain a right to a prescriptive
easement, a claimant’s adverse use must be “actual, open,
notorious, forcible, exclusive, and hostile, and must continue in
full force . . . for at least fifteen years.”18
A prescriptive
easement is a property right in one landowner (dominant tenement)
15
Ky., 582 S.W.2d 40 (1979).
16
Id. at 43.
17
See Columbia Gas Transmission Corp. v. Consol of Kentucky,
Inc., Ky., 15 S.W.3d 727, 730 (2000).
18
Jackey v. Burkhead, Ky., 341 S.W.2d 64, 65 (1960)(quoting
Riley v. Jones, 295 Ky. 389, 174 S.W.2d 530, 531 (1943)).
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representing a privilege to use the land of another (servient
tenement) and is based on a presumed grant that arises from the
adverse, uninterrupted, and continued use for a 15-year statutory
period.19
“[T]he adverse possession of a grantee may be tacked
on to that of his grantor to complete the statutory period.”20
In Pickel v. Cornett,21 the former Court of Appeals
noted that while the elements for obtaining a prescriptive
easement were similar to those for obtaining a fee simple title
to land by adverse possession, the former represented an
incorporeal hereditament with a less stringent standard of use.
A private passway may be acquired by
prescriptive use although a right of way is
not strictly a subject of continuous,
exclusive, and adverse possession. It is
sufficient if the use exercised by the owner
of the dominant tenement is unobstructed,
open, peaceable, continuous, and as of right
for the prescribed statutory period
[citations omitted].22
Continuous, uninterrupted use of a passway without
interference for 15 years or more raises a presumption the use
was under a claim of right and the burden shifts to the opposing
landowner to present evidence to rebut the presumption showing it
19
Illinois Central R. Co. v. Roberts, Ky.App., 928 S.W.2d
822, 827 (1996).
20
Martin v. Kane, Ky., 245 S.W.2d 177, 178 (1951).
21
285 Ky. 189, 147 S.W.2d 381 (1941).
22
Id. 285 Ky. at 191, 147 S.W.2d at 382. See also Lyle v.
Holman, Ky., 238 S.W.2d 157 (1951)(recognizing prescriptive
easement to alley used by tobacco trucks only during tobacco
marketing season).
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was merely permissive.23
However, it is well-established that if
the right to use a passway at its inception is permissive, the
existence of a prescriptive easement or even a presumption of a
claim of right does not arise unless there has been some distinct
and positive act of assertion of right made clearly known to the
owner of the servient tenement.24
The right to use a passway as
a prescriptive easement cannot be acquired no matter how long the
use continues if it originated from permission by the owner of
the servient tenement.25
The trial court held that the Coles did not acquire a
prescriptive easement because they failed to show adverse use of
the passway for more than 15 years.
As part of that ruling, the
trial court found that any use of the passway from the 1940's to
1984, when a non-family member (the FHA) first acquired ownership
of a portion of the property, was permissive.
The passway was
used primarily by members of the Wells family, tenants of Marion
Wells, and guests or invitees of the three Wells children who
inherited the various tracts.
Todd Hurt and Polly Collins both
testified that family members freely used the passway without
having to obtain permission.
The trial court’s finding that this
use was permissive is supported by the evidence.
No distinct and
23
See Ward v. Stewart, Ky., 435 S.W.2d 73, 75 (1968); Finney
v. Deweese, Ky., 252 S.W.2d 6 (1952); Lyle, 238 S.W.2d at 160.
24
See McCoy v. Hoffman, Ky., 295 S.W.2d 560, 561 (1956);
Lambert v. Huntsman, 306 Ky. 862, 209 S.W.2d 709, 711 (1948);
Clark v. Cunning, 302 Ky. 788, 196 S.W.2d 609, 611 (1946); Ward,
435 S.W.2d at 75.
25
See Rominger v. City Realty Co., Ky., 324 S.W.2d 806, 808
(1959); Tapley v. Lee, 305 Ky. 673, 205 S.W.2d 310, 312 (1947).
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clear assertion of a claim of right to use the passway was
brought to the attention of the Gilvins until 1998 by Nelson
Cole.
Consequently, the trial court’s finding that the Coles did
not establish adverse use of the passway for the requisite 15year time period to create a prescriptive easement was not
clearly erroneous.26
III.
QUASI-EASEMENT
The third theory raised by the Coles is that they
obtained a right to use the passway as a quasi-easement or
easement by implication.
This theory is based on a legal
inference that the original owner intended to create an easement
in favor of one section of his realty.
A quasi-easement is based
on the rule that “where the owner of an entire tract of land or
of two or more adjoining parcels employs one part so that another
derives from it a benefit of continuous, permanent and apparent
nature, and reasonably necessary to the enjoyment of the quasidominant portion, then upon a severance of the ownership a grant
or reservation of the right to continue such use arises by
implication of law.”27
Generally, in order to prove an easement
by implication of law, a party must show: (1) that there was a
separation of title from common ownership; (2) that before the
separation occurred the use which gave rise to the easement was
so long continued, obvious, and manifest that it must have been
26
Cf. Bowens v. Amburgey, 289 Ky. 763, 160 S.W.2d 169
(1942)(affirming finding of no easement over passway where use of
passway was primarily by family members and tenants prior to
conveyance by children of original owner).
27
Kreamer v. Harmon, Ky., 336 S.W.2d 561, 563 (1960). See
also Swinney v. Haynes, 314 Ky. 600, 236 S.W.2d 705 (1951).
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intended to be permanent; and, (3) that the use of the claimed
easement was highly convenient and beneficial to the land
conveyed.28
Because a quasi-easement involves the intentions of
the parties, the date the unity of ownership ceases and there is
a severance of common ownership is the point of reference in
ascertaining whether an easement has been imposed upon adjoining
land.29
Factors relevant to establishing a quasi-easement
include:
“(1) whether the claimant is the grantor or the grantee
of the dominant tract; (2) the extent of necessity of the
easement to the claimant; (3) whether reciprocal benefits accrue
to both the grantor and grantee; (4) the manner in which the land
was used prior to conveyance; and (5) whether the prior use was
or might have been known to the parties to the present
litigation.”30
The courts have implied an easement more readily
in favor of a grantee than a grantor because a grantor has the
ability to control the language in the deed to express the
28
Evanik v. Janus, 120 Ill.App.3d 475, 485, 458 N.E.2d 962,
969 (1983); Bob’s Ready to Wear, Inc. v. Weaver, Ky.App., 569
S.W.2d 715, 718 (1978).
29
Evanik, 120 Ill.App.3d at 486, 458 N.E.2d at 969;
Thompson v. Schuh, 286 Or. 201, 593 P.2d 1138, 1145-46 (1979);
Boyd v. McDonald, 81 Nev. 642, 650 n.6, 408 P.2d 717, 721 n.6
(1965)(noting that evidence of later conveyances by original
owner was only relevant to show intentions with respect to
initial severance); Holden v. Weidenfeller, 929 S.W.2d 124
(Tex.App. 1996).
30
Bob’s Ready To Wear, Inc. 569 S.W.2d at 719 (citing Knight
v. Shell, 313 Ky. 852, 233 S.W.2d 973 (1950), and Restatement of
the Law of Property § 476 (1944)). See also Sievers v. Flynn,
305 Ky. 325, 204 S.W.2d 364 (1947).
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intentions of the parties.31
Whether the prior use was known
involves not absolute direct knowledge, but “susceptibility of
ascertainment on careful inspection by persons ordinarily
conversant with the subject.”32
Also, the use must be
“reasonably necessary” meaning more than merely convenient to the
dominant owner, but less than a total inability to enjoy the
property absent the use.33
While all of the factors are
considered, the factor involving necessity is considered the most
important.34
The Coles argue that the above factors support their
claim that they obtained an implied quasi-easement to use the
passway.
The Coles contend that they should be considered
grantees because they purchased their property before the
Gilvins, who should be treated as grantors standing in the shoes
of the FHA.
The Coles further state that any doubts should be
resolved in their favor as grantees.
They also claim use of the
passway was reasonably necessary because construction of an
alternative route would cost approximately $42,000.00.
The Coles
assert that the passway was used consistently by the Wells family
and others for an extended period of time.
Finally, they
maintain that the Gilvins had constructive notice of the
31
Knight, 233 S.W.2d at 975; Restatement of the Law of
Property § 476 cmt. c.
32
Sievers, 305 Ky. at 328, 204 S.W.2d at 366.
33
Id. This factor is different from and less stringent than
the analysis applicable to creating an implied easement by
necessity.
34
Knight, 233 S.W.2d at 975-76.
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existence of a passway easement.
The trial court held that the theory of quasi-easement
did not apply because the Gilvins were bona fide purchasers who
purchased without actual or constructive knowledge of a passway
easement in favor of the Coles.
The trial court unnecessarily
invokes equitable principles of estoppel that are more readily
applicable to the law of licenses than easements.35
Quasi-
easement involves implying by operation of law the use of
property based on a determination of the intent of the parties
from the circumstances surrounding creation of an easement and
the conveyance.
Estoppel, meanwhile, concerns prohibiting a
party from denying the existence of a right to use property,
i.e., a license, based on justifiable reliance that the license
will continue.
The reliance derives from conduct by the licensor
and typically also includes actions by the licensee such as the
making of improvements based on that reliance.36
Unlike a quasi-
easement, an easement by estoppel or a license is not appurtenant
to the land.37
There is no evidence that the Gilvins induced
reliance on the part of the Coles, so the principle of estoppel
for purposes of recognizing a quasi-easement would not apply.
Generally, a purchaser takes possession of property
subject to all easements and encumbrances including implied
35
See, e.g., Bob’s Ready to Wear, supra; Buffington v.
Buffington, 390 Pa.Super. 61, 568 A.2d 194 (1989).
36
See Bob’s Ready to Wear, supra; Loid v. Kell, Ky.App., 844
S.W.2d 428 (1992).
37
See Loid, 844 S.W.2d at 430.
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easements.38
However, subsequent bona fide purchasers take
possession of property subject to roadway easements only if they
have actual or constructive knowledge of the existence of the
easement.39
A purchaser is considered to have constructive
knowledge of the implied quasi-easement when the passway is
obvious and visible from an inspection of the property.40
In the current case, the trial court found that the
Gilvins did not have actual or constructive knowledge of the
passway easement when they purchased their property in 1988.
It
noted that none of the deeds concerning Marion Wells’ property
mentioned or contained an easement associated with this passway.
The trial court also stated that the actual use of the passway
was so infrequent and the appearance of the passway was such that
the Gilvins could not be held to have been placed on notice of
the passway as a necessary means of access to the Coles’ tract.
A review of the record indicates that this finding is
supported by the evidence and is not clearly erroneous.
Polly
Collins testified that the passway generally was used very seldom
and was in poor condition.
to maintain it.
She stated that she did not attempt
Photographs of the area and Nelson Coles’
38
Sievers, supra; Hedges v. Stucker, 237 Ky. 351, 35 S.W.2d
539 (1931).
39
See Lawson v. Campbell, 299 Ky. 284, 185 S.W.2d 391, 393
(1945)(a purchaser takes property subject to whatever
encumbrances were placed thereupon by obvious and known passway
in favor of adjoining land owners); Casey v. Hensley, 245 Ky.
308, 53 S.W.2d 698 (1932); Renner v. Johnson, 2 Ohio St.2d 195,
207 N.E.2d 751 (1965).
40
Id.; see also Smith v. Smith, 304 Ky. 562, 201 S.W.2d 720
(1947)(involving prescriptive easement).
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testimony indicate that the portion of the passway on the Coles’
property was overgrown with vegetation.
Shirley Gilvin stated
that while her family used the passway to get to their tract
prior to purchasing it, the passway was in poor condition at that
time.
She said they never saw anyone using the passway and
believed it was the main route for access to their tract.
Dan
Gilvin testified that when the family purchased their property,
the passway was poorly maintained and covered with grass.
He
said that based on his viewing of the area in 1988, he believed
the passway ended on the Gilvins’ tract near the boundary with
the Coles’ tract, and he never saw Nelson Cole use the passway.
We believe there was substantial evidence that the Gilvins
reasonably should not have been aware of the existence of an
easement or the prior use of the passway as an access route to
the Coles’ tract.
Thus, even assuming an implied quasi-easement
existed when the property owned by Marion Wells was separated by
partition, the Gilvins did not take title to their tract subject
to the easement.
For the foregoing reasons, the judgment of the Todd
Circuit Court is affirmed.
DYCHE, JUDGE, CONCURS.
BARBER, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
BARBER, JUDGE, DISSENTING:
The Coles purchased a piece
of property from the Farmers Home Administration in February
1986.
Access to the property, at the time of purchase, was by a
passway from the county road over an adjacent piece of property.
In April 1988, the Gilvins purchased the property on which the
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passway lay from Farmers Home Administration.
Both pieces of
property had originally been owned as a single tract by Marion
and Minnie Wells.
The record indicates that the passway was in
existence prior to the conveyance of the property to the Farmers
Home Administration.
The passway was in existence and in use at
the time both the Coles and the Gilvins purchased their
respective tracts.
Nelson Cole used the passway at least
annually to gain access to his property for maintenance purposes.
The Gilvins built a separate roadway to gain access to their
property.
In 1998, the Gilvins blocked access to the passway by
means of a locked gate.
their property.
This left the Coles with no access to
They filed a civil action seeking a declaration
as to the existence of an easement in the passway to their
property.
It is uncontroverted that the passway had been in use
since 1940, and the passway had never been blocked by the owner
of the property.
No feasible alternate route would afford access
to the property.
The parties all testified that any alternative
passway to the property would have to pass over adjacent tracts
and that the Coles would incur substantial costs in building such
a roadway.
The majority correctly affirms the trial court in that
the Coles’ claim of public roadway or easement by prescription is
not supported by the evidence.
Yet, the Coles are entitled to an
easement by implication or an easement by necessity; I
respectfully dissent from the majority opinion’s failure to
recognize this remedy.
An easement by implication, or quasi-
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easement, occurs when the original property owner creates a
passway enabling access to a section of his realty.
Harmon, Ky., 336 S.W.2d 561, 563 (1960).
Kreamer v.
The majority
acknowledges that such an easement exists where (1) there is a
separation of title from common ownership, (2) the separation
occurs after long and continuous use of the easement, and (3)
that the use of the easement is highly convenient and beneficial
to the land conveyed.
See Bob’s Ready to Wear, Inc. v. Weaver,
Ky. App., 569 S.W.2d 715, 718 (1978).
It is uncontroverted that the Cole property and the
Gilvin property derive from common ownership.
Similarly, it is
uncontroverted that the easement has been in long and continuous
use, and such use began long before the tracts were separated.
The evidence before the trial court further established that the
use of the claimed easement was highly convenient and beneficial
to the land conveyed.
In fact, without building a new road
across separate tracts of property, there is no other access to
the tract conveyed.
Under such circumstances, an easement by
implication is proper.
A purchaser takes possession of realty subject to any
easement of which he has actual or constructive knowledge.
Lawson v. Campbell, 299 Ky. 284, 185 S.W.2d 391, 393 (1945).
The
testimony of numerous witnesses showed that the passway had been
in use prior to 1940, and this use to gain access to the Cole
tract was well known.
For two years prior to the Gilvins’
purchase of their tract, the passway was regularly used by the
Coles to gain access to their land.
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Where the prior use is
capable of ascertainment by careful inspection, the servient
estate must be bound by the easement.
Sievers v. Flynn, 305 Ky.
325; 204 S.W.2d 364 (1947).
Where the easement is necessary for the enjoyment of
that portion of the property transferred, the easement passes by
implication.
(1931).
Hedges v. Stucker, 237 Ky. 351; 35 S.W.2d 539, 540
If the original owner of the property accessed the tract
by means of the passway, the easement should pass to successive
owners by implication.
250 (1986).
Hall v. Coffey, Ky.App., 715 S.W.2d 249,
The easement has always been necessary to reach that
portion of the property now owned by the Coles.
The necessity of
the easement to the Coles is clear; it is reasonably necessary
for the Coles to reach their tract, and no other means of ingress
or egress exists.
found.
Under such circumstances, an easement must be
Sievers at 366.
For the forgoing reasons, I respectfully dissent from
the majority’s opinion.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES:
Kenneth E. Dillingham
Elkton, Kentucky
Harold M. Johns
Elkton, Kentucky
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