MARLOW CARROLL v. TIMMY MEREDITH
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RENDERED:
October 26, 2001; 10:00 a.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002289-MR
MARLOW CARROLL
APPELLANT
APPEAL FROM EDMONSON CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
ACTION NO. 98-CI-00030
v.
TIMMY MEREDITH
APPELLEE
OPINION
REVERSING
** ** ** ** **
BEFORE:
JOHNSON, KNOPF AND MILLER, JUDGES.
JOHNSON, JUDGE:
Marlow Carroll has appealed from an order of the
Edmonson Circuit Court entered on June 23, 2000, which granted
Timmy Meredith an easement by necessity to the back portion of
his property over a private roadway on Carroll’s property.
Having concluded that the trial court erred by applying an
incorrect legal standard and by finding sufficient necessity for
the use of the roadway, we reverse.
Carroll owns an 80-acre tract of land adjacent to a
six-acre tract of land owned by Meredith.
Carroll purchased his
land in 1974 after having engaged in mining operations, along
with his employer, on the property under a lease agreement
between 1970 and 1974.
Meredith purchased his land in 1994.
At
one point, both tracts were owned by Joel Stinnett, who created a
roadway in the 1940’s across the property to the J. Carroll Road,
a two-lane public highway.
The Stinnett property was
subsequently owned by Carroll’s parents and other relatives who
divided it in approximately 1966.
Following the division of the
property, the Joel Stinnett Roadway was used as the primary means
of ingress and egress off of J. Carroll Road into Marlow
Carroll’s tract.
Both the Carroll and Meredith tracts abut the
J. Carroll Road, with Meredith having approximately 300-500 feet
of frontage on the J. Carroll Road.
The Joel Stinnett Roadway
borders the two parties’ properties.
Between 1970 and 1974, a locked cable was placed across
the Joel Stinnett Roadway.
After Carroll purchased his tract, he
erected a wooden gate across the entrance that is approximately
50-100 feet from the J. Carroll Road.
He locked the gate with a
padlock and placed a no trespassing sign on it.
has maintained the Joel Stinnett Roadway.
Carroll alone
Carroll periodically
allowed some individuals to use the roadway for access to his
pond or other property located behind his tract.
When Meredith
purchased his tract, Carroll gave him a key to the lock on the
fence and permission to use the roadway to transport wood
Meredith cut on the back or lower portion of his tract.
After
some incidents involving destruction of items on Carroll’s
property and injury to one of his cows, Carroll changed the lock
on the gate and informed Meredith that he would no longer be
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allowed to use the Joel Stinnett Roadway.
Carroll also put up
fencing along the roadway to prevent access to it.
Meredith
still had access to his mobile home, which was located on the
front section of his tract, via the J. Carroll Road and a
driveway connected to a portion of the Joel Stinnett Roadway
which had not been restricted by the gate, but he had no
established means of access by vehicle to the back or lower
portion of his tract.
On March 7, 1998, Meredith filed a complaint in the
Edmonson Circuit Court seeking to quiet title to the land
containing the Joel Stinnett Roadway.
He claimed a fee simple
title to the land by adverse possession.
After taking the
depositions of the parties, Carroll filed a motion for summary
judgment in September 1998, which the trial court denied because
of the existence of genuine issues as to material facts.
On March 31, 1999, the trial court conducted a bench
trial at which Timmy Meredith and Doyle Hardin, a surveyor,
testified for the plaintiff/appellee and Marlow Carroll, Eddie
Higgs, Ivan Hornback, and Wilbur Oller testified for the
defendant/appellant.
Meredith testified that the locked gate on
the Joel Stinnett Roadway was in place when he purchased his
property and that he had been aware of its existence for at least
20 years.
He stated that he knew Carroll controlled access to
the roadway.
Meredith said Carroll initially allowed him to use
the roadway but later withdrew his permission and changed the
lock.
He stated that no one had lived on his tract for at least
15 years prior to his purchasing it but that he lived there in a
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mobile home with his parents.
He indicated that a bluff on his
property prevented easy access to the back portion except by way
of the Joel Stinnett Roadway.
Meredith said he needed access to
the back portion of his property to transport wood.
Doyle Hardin testified that the description in
Meredith’s deed did not contain sufficient measurements for him
to prepare a plat of the property.
He stated that the roadway
provided access to the back or lower portion of Meredith’s tract
and that otherwise it would be very difficult to get a vehicle
across Meredith’s property because of a steep bluff.
He believed
that use of a roadway in a deed description generally is
interpreted to convey ownership to the center of the roadway.
Marlow Carroll testified that Joel Stinnett originally
created the roadway when he owned a large piece of property which
included the land owned by the two parties.
The land was later
owned by Carroll’s grandmother and father.
The roadway provided
access to a house and a lake on the property now owned by
Carroll.
It was also used during the strip-mining operations
between 1970-1974.
When Carroll purchased his tract, he
initially prevented use of the road with a locked wire cable and
later a wooden fence.
In 1974, Ivan Hornback’s mother-in-law,
Corene Miller, was living in a mobile home on Meredith’s tract.
Hornback purchased the tract in 1977 when his mother-in-law left
the area and no one lived on the property until 1994 when
Meredith purchased it from Hornback and Wilbur Oller.
Carroll
testified that neither Miller, nor Hornback had used the Joel
Stinnett Roadway.
Carroll allowed a few people to use the
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roadway for access to the lake on his property for purposes of
fishing.
Carroll stated that he alone maintained the roadway.
He said that he allowed Meredith to use the roadway to haul wood,
but a year later he withdrew his permission and changed the lock
on the fence.
Carroll testified that based on his experience
having owned and operated a bulldozer for several years, a
roadway could be created entirely on Meredith’s land for
vehicular use in three to four hours.
Ivan Hornback and Wilbur Oller testified that no one
lived on the Meredith tract between 1977-1994.
Hornback also
stated that he did not speak with Meredith before Meredith
purchased the property in 1994.
Oller said that he viewed the
property with Meredith’s father and they did not use the roadway
to access the back portion, but instead walked down the bluff.
He stated that he did not discuss access to the back of the
property with the Merediths.
Oller also testified that he
assumed the Joel Stinnett Roadway was not part of his property,
so he intended to build a roadway across the property but sold it
before he could start the project.
Oller indicated that it would
be expensive to build a new road.
On June 23, 2000, the trial court entered an order
wherein it ruled that Carroll had acquired title to the Joel
Stinnett Roadway through adverse possession, but that Meredith
was entitled to a limited easement for access to the back portion
of his tract.
Although acknowledging that Meredith failed to
plead the existence of an easement and did not establish the
right to ownership or use of the roadway by equitable estoppel,
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the trial court ruled that there was sufficient evidence admitted
at trial to support the recognition of an implied easement by
necessity.
It reasoned as follows:
As Defendant notes, there are no
Kentucky cases giving an easement by
necessity when a portion of the tract has
access to a public road. However, there are
also no cases holding that such a finding
would be improper. It appears that building
a road that would allow a vehicle to travel
from the front part of the property, over the
bluff, to the rear portion of the property,
while not impossible, would be a tremendous
undertaking in terms of time and expense.
There are Kentucky cases, including Bob’s
Ready to Wear, Inc. v. Weaver, 569 S.W.2d 715
(Ky. App. 1978) holding that one isn’t
required to show “absolute necessity” for
access to their property, but that “all that
is required is that the easement be
reasonably necessary.” In that case the
court stated that the fact that one of the
parties had other access to their store “is
not an automatic bar to their claim to an
easement by implication to the parking lot.”
Likewise, in Knight v. Shell, 313 Ky.
852, 233 S.W.2d 973 (Ky. 1950), the court
quoted from Restatement, Property, Volume 5,
Chapter 38, Section 476g, p. 2983:
. . . .If land can be used without
an easement, but cannot be used
without disproportionate effort and
expense, an easement may still be
implied in favor of either the
conveyor or the conveyee on the
basis of necessity along (sic)
without reference to prior use.
Taking into account the effort and
expense building a roadway through the
Plaintiff’s property would entail and the
fact that the access Plaintiff is asking for
is minimal (the right to use a portion of the
roadway to carry firewood and gardening
items) this Court finds that the Plaintiff is
entitled to an easement of the roadway.
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On June 30, 2000, Carroll filed a motion to amend
pursuant to CR1 52.02 and CR 59.01 challenging the trial court’s
awarding of an easement to Meredith.
insufficient evidence of necessity.
He argued there was
On August 25, 2000, the
trial court summarily denied the motion.
This appeal followed.
The sole issue on an appeal is whether the trial court
erred by recognizing an easement by necessity over the Joel
Stinnett Roadway in favor of Meredith.
Carroll contends that the
trial court’s finding of an easement by necessity is not
supported by the evidence and that it erred in applying the law
to the facts.
He asserts that there was no proof that there
would be any disproportionate expense or effort required to
provide access to the rear portion of Meredith’s six-acre tract.
He points to testimony by Meredith and Wilbur Oller that creating
an alternate roadway would merely be difficult.
Carroll states
that Meredith offered no proof as to the expense of an alternate
route.
He maintains that the trial court applied an incorrect
standard of necessity in finding the need for an access easement.
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
1
A factual finding is not clearly erroneous
Kentucky Rules of Civil Procedure.
2
CR 52.01. See also Lawson v. Loid, Ky., 896 S.W.2d 1, 3
(1995); A & A Mechanical, Inc. v. Thermal Equipment Sales, Inc.,
(continued...)
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if it is supported by substantial evidence.3
However, a
reviewing court is not bound by the trial court’s decision on
questions of law.
An appellate court reviews the application
of the law to the facts and the appropriate legal standard de
novo.
Generally, an easement may be created by express
written grant, implication, prescription or estoppel.4
by implication includes two legal theories:
and (2) easement or way by necessity.5
Easement
(1) quasi-easement
A quasi-easement arises
from a prior existing use of land; whereas, an easement by
necessity is based on public policy and an implied intent of the
parties favoring the use and development of land as opposed to
rendering it useless.6
Easements are not favored and the party
2
(...continued)
Ky.App., 998 S.W.2d 505, 509 (1999).
3
Owens-Corning Fiberglas Corp. v. Golightly, Ky.App., 976
S.W.2d 409, 414 (1998); Faulkner Drilling Co. 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
Loid v. Kell, Ky.App., 844 S.W.2d 428, 429 (1992)(citing
Grinestaff v. Grinestaff, Ky., 318 S.W.2d 881, 884 (1958) and
Holbrook v. Taylor, Ky., 532 S.W.2d 763, 764 (1976)).
5
See generally Restatement (Third) of the Law of Property §§
2.11-2.15 (1998); 28A C.J.S. Easements §92 (1996 and Supp. 2001);
Albert G. Hoyen Trust v. Galt, 292 Mont. 56, 61, 968 P.2d 1135,
1138 (1998).
6
Marrs v. Ratliff, 278 Ky. 164, 128 S.W.2d 604, 609 (1939);
Reese v. Borghi, 216 Cal. App. 2d 324, 30 Cal. Rptr. 868, 872
(1963); Burley Brick & Sand Co. v. Cofer, 102 Idaho 333, 335, 629
P.2d 1166, 1168 (1981); Bickel v. Hansen, 169 Ariz. 371, 375, 819
P.2d 957, 961 (1991).
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claiming the right to an easement bears the burden of
establishing all the requirements for recognizing the easement.7
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 quasi-dominant
portion, then upon a severance of the ownership a grant or
reservation of the right to continue such use arises by
implication of law.”8
Generally, in order to prove a quasi-
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 intended to be permanent; and, (3) that the use of
the claimed easement was highly convenient and beneficial to the
land conveyed.9
Because a quasi-easement involves the intentions
of the parties, the date the unity of ownership ceases by
7
See, e.g., Ben Snyder, Inc. v. Phoenix Amusement Co., 309
Ky. 523, 218 S.W.2d 62 (1949)(involving prescriptive easement);
and Marrs, supra. See also Thompson v. Whinnery, 895 P.2d 537,
540 (Colo. 1995)(“The burden of proving the existence of an
implied easement of necessity is upon the person claiming the
easement.”).
8
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).
9
Evanik v. Janus, 120 Ill.App.3d 475, 485, 458 N.E.2d 962,
969 (1983); Bob’s Ready to Wear, Inc., 569 S.W.2d at 718.
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severance is the point of reference in ascertaining whether an
easement has been imposed upon adjoining land.10
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.”11
The courts imply 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
intentions of the parties.12
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.”13
Also, the use must be
“reasonably necessary” meaning more than merely convenient to the
10
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).
11
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)); 5
Restatement of the Law of Property § 476 (1944). See also
Sievers v. Flynn, 305 Ky. 325, 204 S.W.2d 364 (1947).
12
Knight, 233 S.W.2d at 975; Restatement of the Law of
Property §476 cmt. c.
13
Sievers, 204 S.W.2d at 366.
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dominant owner, but less than a total inability to enjoy the
property absent the use.14
In contrast to a quasi-easement, which derives solely
from the implied intent of the parties, an easement or way of
necessity is based primarily on the policy favoring beneficial
use of property.15
Unlike a quasi-easement involving prior use,
an easement by necessity exists in favor of the dominant estate
whether it is used or not, so long as it is necessary for access.
The three prerequisites to creation of an easement or
way of necessity are (1) unity of ownership of the dominant and
servient estates; (2) severance of the unity of title by a
conveyance of one of the tracts; and (3) necessity of the use of
the servient estate at the time of the division and ownership to
provide access to the dominant estate.16
While necessity is one
factor relevant to determining the intent of the grantor to grant
a quasi-easement, necessity of access is the primary factor for
the existence of a way of necessity.
A greater degree of
necessity is required to create an easement by necessity than for
a quasi-easement based on prior use.17
14
As opposed to the
Id.
15
See Warfield v. Basich, 161 Cal.App.2d 493, 498, 326 P.2d
942 (1958).
16
See 28A C.J.S. Easements §93 (1996 and Supp. 2001); Tobias
v. Dailey, 196 Ariz. 418, 998 P.2d 1091 (2000); Graff v. Scanlan,
673 A.2d 1028 (Pa.Commw.Ct. 1996); Albert G. Hoyen Trust, supra;
and Thompson, supra.
17
See, e.g., Granite Properties Ltd. Partnership v. Manns,
140 Ill. App. 3d 561, 571-72, 487 N.E.2d 1230, 1237 (1986);
Russakoff v. Scruggs, 241 Va. 135, 140, 400 S.E.2d 529, 533
(1991); and Bear Island Water Ass’n v. Brown, 125 Idaho 717, 725,
(continued...)
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“reasonable” necessity associated with quasi-easements, a
requirement of “strict” necessity has traditionally applied to
easements or ways of necessity.18
Strict necessity has generally
been defined as absolute necessity such as where property is
landlocked or otherwise inaccessible.19
A way of necessity generally will not be implied if the
claimant has another means of access to a public road from his
land however inconvenient.20
In addition, courts applying the
strict necessity standard have rejected the creation of an
easement by necessity to a portion of a claimant’s property where
any part of the property abuts or has direct access to a public
17
(...continued)
874 P.2d 528, 536 (1994).
18
See, e.g., Marrs, 128 S.W.2d at 609 (way of necessity
involves “strict necessity; mere convenience will not do”). See
n.19, infra. See also KRS 416.350, which creates a private right
of eminent domain to acquire a right-of-way for landlocked
property.
19
See, e.g., Hall v. Coffey, Ky.App., 715 S.W.2d 249 (1986);
Carr v. Barnett, Ky.App., 580 S.W.2d 237 (1979); Hillary Corp. v.
United States Cold Storage, 250 Neb. 397, 550 N.W.2d 889 (1996);
Graff, supra; and Morris v. Simmons, 909 S.W.2d 441 (Tenn.Ct.App.
1993). A small number of courts apply a more flexible
reasonableness standard of necessity based on whether the expense
of creating an alternative route exceeds the value of the entire
servient estate. See, e.g., D’Addario v. Truskoski, 57 Conn.App.
236, 749 A.2d 38 (2000); Daniel v. Fox, 917 S.W.2d 106 (Tex.App.
1996); Beck v. Mangels, 100 Md.App. 144, 640 A.2d 236 (1994);
Jackson v. Nash, 109 Nev. 1202, 866 P.2d 262 (1993); and 25
Am.Jur.2d Easements and Licenses, §42 (2d ed. 1996 & Supp. 2001)
20
See Standard Elkhorn Coal Co. v. Moore, 217 Ky. 317, 289
S.W. 261 (1926); Michael A. DiSabatino, J.D., Annotation, Way of
Necessity Over Anothers Land, Where a Means of Access Does Exist,
10 A.L.R.4th 447 (1981); and Scoville v. Bailey, 307 Ky. 719, 211
S.W.2d 816 (1948).
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road.21
A party seeking an implied easement has the burden of
proving the existence of the easement by clear and convincing
evidence.22
In the case sub judice, the trial court held that
Meredith was entitled to an implied right-of-way easement based
on the disproportionate expense of creating an alternate route
across Meredith’s property.
The trial court erroneously applied
the “reasonable,” rather than the “strict,” standard of necessity
in recognizing an easement in favor of Meredith.
The trial
court’s reliance on the cases of Bob’s Ready to Wear, Inc. and
Knight was misplaced because both of those cases involved quasieasements, not easements by necessity.
Kentucky case law has
consistently applied the “strict” necessity standard for an
easement or way of necessity.
While necessity is an important
factor in determining the existence of a quasi-easement, it is
the sole factor for an easement by necessity.
Therefore, in
order to imply the intent of the grantor to create an easement
and to impose a burden on the dominant estate based on necessity
21
See, e.g., Phillippi v. Knotter, 2000 Pa.Super. 71, 748
A.2d 757 (2000); McConnell v. Satterfield, 576 N.E.2d 1300
(Ind.Ct.App. 1991); Canei v. Culley, 179 W.Va. 797, 374 S.E.2d
523 (1988); Burling v. Leiter, 272 Mich. 448, 262 N.W. 388
(1935); Gowan v. Crawford, 599 So.2d 619 (Ala. 1992); Miskoff v.
Cross Fox Condominium Ass’n, 460 So.2d 987 (Fla.Dist.Ct.App.
1984); and Marrs, supra. But see Black v. Van Steenwyck, 333
Ark. 629, 970 S.W.2d 280 (1998)(finding quasi-easement to portion
of property under reasonable necessity standard); Liles v.
Wedding, 84 Or.App. 350, 733 P.2d 952 (1987); and Beeson v.
Phillips, 41 Wash.App. 183, 702 P.2d 1244 (1985)(finding easement
under state private condemnation statute applying reasonable
necessity standard).
22
See Griffeth v. Eid, 1998 N.D. 38, 573 N.W.2d 829 (1998);
and Roberts v. Smith, 41 Wash.App. 861, 707 P.2d 143 (1985).
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alone, a clear showing of absolute necessity with no other means
of access to the servient estate is required.
The trial court’s exclusive focus on necessity and its
failure to provide any analysis or factual findings on the other
factors is indicative of its failure to distinguish between the
two theories.
In fact, the evidence indicated that there was
little or no use of the Joel Stinnett Roadway by the owners of
the Meredith tract until shortly after Meredith purchased the
property and he began to use the roadway with Carroll’s
permission.
Moreover, the only evidence concerning the roadway’s
use at the time of the severance of the unity of title was
Carroll’s testimony that it was used for access to the residence
on his tract.
Easements by implication are legal creations
derived from an examination of the intent of the parties based on
the circumstances surrounding the transfer of ownership of
property.
Quasi-easements involve the prior use of a dominant
estate, while easements by necessity involve the need for access
to property.
The trial court’s opinion incorrectly applied the
lesser standard for necessity associated with quasi-easements,
rather than easements by necessity.
As the trial court noted, there are no Kentucky cases
dealing with an easement by necessity where only a portion of a
claimant’s property lacks ready access to a public road because
of an obstruction.
In Phillippi, supra, the appellants owned a
45-acre tract adjacent to the appellees’ property, consisting of
a western 40-acre parcel and an eastern five-acre parcel
separated by a 100 foot railroad right-of-way.
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A public road ran
through the appellants’ 40-acre parcel, and an old roadway on the
appellees’ property connected the appellants’ five-acre tract
with the public road.
The Court held that the appellants failed
to establish an easement by necessity stating:
From the time of the original severance to
the present, the western portion of the land
currently owned by appellants has been
accessible from a public road. Therefore,
the situation caused by the original
severance was not that of strict necessity in
which property was conveyed in such a way
that access to it from a public road could
not be had except by passing over the
remaining land of the grantor. We believe
the term “strict necessity” in this context
requires that property be without any access
to a public road. Allowing an individual to
use the doctrine of easement by necessity to
ensure that each portion of his or her
singular property has access to a public road
would be far too expansive for this intrusive
doctrine.23
In Marrs, supra, the Court applied the “strict” necessity
standard in refusing to recognize an easement by necessity over a
passway abutting a public road.
In recognition of the traditional use of the “strict”
necessity standard for easements by necessity under Kentucky law,
we believe that Meredith failed to establish that he is entitled
to an easement by necessity over the Joel Stinnett Roadway since
he has direct access to the J. Carroll Road along the northern
portion of his property and some access to the back portion of
the tract over his own property.
23
Accordingly, we reverse the
748 A.2d at 761. See also McConnell, supra (declining to
recognize easement by necessity over driveway to back portion of
land fronting a public road even though creation of alternate
route would be difficult and expensive).
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order of the Edmonson Circuit Court to the extent it granted a
right-of-way easement in favor of Meredith.24
All CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Bryan Le Sieur
Brownsville, Kentucky
Gary S. Logsdon
Brownsville, Kentucky
24
We note that the trial court’s decision quieting title to
the land on which Joel Stinnett Roadway is located to Marlow
Carroll was not appealed.
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