DON PATRICK; BARBARA PATRICK; J.W. ALLEN, JR.; JEAN ALLEN; STEWART GIBBS; BERTHA GIBBS; MARSHALL STREET; PRISCILLA SUE STREET; S.C. ALLEN, JR.; LISA ALLEN; TED C. PATRICK; CAROL PATRICK; MARVIN PATRICK; and JOANN PATRICK v. KENTUCKY MAY COAL COMPANY; DOVIE MILLER; GARY MILLER; J.B. MILLER; NOLA MILLER; GENEVA CUNNINGHAM; DOUGLAS CUNNINGHAM; DELMAR MILLER; MARGIE MILLER; RUBY JEAN MILLER; ARTHUR MILLER; RUBY BERGEN; OMA JEAN TAYLOR; GROVER TAYLOR; JOSEPHINE MILLER; LARRY MILLER; LOSS MILLER; DOROTHY MILLER; and MARVIN MILLER
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RENDERED: AUGUST 9, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-001017-MR
DON PATRICK; BARBARA PATRICK;
J.W. ALLEN, JR.; JEAN ALLEN;
STEWART GIBBS; BERTHA GIBBS;
MARSHALL STREET; PRISCILLA SUE
STREET; S.C. ALLEN, JR.; LISA
ALLEN; TED C. PATRICK; CAROL
PATRICK; MARVIN PATRICK; and
JOANN PATRICK
APPELLANTS
APPEAL FROM MAGOFFIN CIRCUIT COURT
HONORABLE JOHN ROBERT MORGAN, JUDGE
ACTION NO. 95-CI-00272
v.
KENTUCKY MAY COAL COMPANY;
DOVIE MILLER; GARY MILLER;
J.B. MILLER; NOLA MILLER;
GENEVA CUNNINGHAM; DOUGLAS
CUNNINGHAM; DELMAR MILLER;
MARGIE MILLER; RUBY JEAN MILLER;
ARTHUR MILLER; RUBY BERGEN; OMA
JEAN TAYLOR; GROVER TAYLOR;
JOSEPHINE MILLER; LARRY MILLER;
LOSS MILLER; DOROTHY MILLER;
and MARVIN MILLER
APPELLEES
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
COMBS, McANULTY, and SCHRODER, Judges.
COMBS, JUDGE:
Don Patrick and “the Allen heirs” appeal a
judgment of the Magoffin County Circuit Court, which declared
that Dovie Miller, et. al (the Millers), had acquired ownership
by adverse possession of the surface tract and underlying
minerals of a certain parcel of property in Magoffin County, KY.
The Allen heirs claim ownership of the entire surface
and mineral estate of lot three (the “Susie Allen tract”) on Long
Creek, based on a May 4, 1964, deed by the Allens to the Millers.
That deed conveyed lot one, the “dower” tract, and lot two, but
omitted it lot three.
The Millers claim ownership of both the
mineral and surface estate of lot three, which adjoins lot two,
by adverse possession.
On December 19, 1995, Kentucky May Coal Company
(Kentucky May) filed an action in interpleader seeking a
declaration of the respective ownership interests in the
property; the owner of lot three was entitled to mining royalties
from Kentucky May.
By order of March 13, 2001, the court entered
its judgment in favor of the Millers.
This appeal followed.
The Allens allege two errors on appeal:
(1) that the
entry of summary judgment without notice to the parties by the
Magoffin Circuit Court was erroneous and (2) that summary
judgment in favor of the Millers was incorrect.
In resolving
these issues, we also must determine whether adverse possession
of a surface tract carries over to ownership of the underlying
mineral tract where the two interests have not been severed.
Our standard of review is that we may not set aside
findings of the trial court unless they are clearly erroneous.
CR 52.01.
Croley v. Alsip, Ky., 602 S.W.2d 418, 419 (1980).
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On or about May 11, 1964, Joe Miller (deceased),
husband of appellee Dovie Miller, purchased real property from
Rhena Swinney, et. al, who purported to sell to Joe all of
Swinney’s interest in the property at issue; that property is
located on Long Branch in Magoffin County, Kentucky.
Even though
the deed did not convey lot three, the Miller heirs have been in
continuous possession of this parcel of land.
After Joe Miller
died, Dovie Miller, his widow, became one of the group identified
as the Miller heirs.
In 1980, the same dispute over royalties was litigated
in Sam Allen, Jr., et. al v. Dovie Miller, et. al (80-CI-126).
By deposition in that earlier lawsuit, the Miller heirs testified
that prior to and since 1964, Joe Miller and his family had
openly, continuously, exclusively, adversely, and notoriously
possessed and used lot three to tend cattle.
This 1980 case was
dismissed for failure of the plaintiffs to prosecute.
On April 23, 1992, Kentucky May obtained leases from
Dovie Miller and the other Miller heirs for the purposes of
mining and producing coal on property conveyed to the Millers by
Swinney.
(TR, p. 12).
On June 20, 1994, S.C. Allen, Jr., and
the Allen heirs granted Kentucky May the mining rights to lot
three on Long Creek.
After reviewing the evidence presented earlier in Sam
Allen, Jr., et. al v. Dovie Miller, et. al, (the 1980 lawsuit),
in conjunction with the evidence in the present action, a special
commissioner found that the minerals have not been severed from
lot three.
Furthermore, the commissioner determined that the
-3-
Miller heirs have adversely possessed the surface of lot three
with its underlying minerals since 1964, thereby acquiring
ownership.
On March 13, 2001, the court directed the Master
Commissioner to execute a deed for lot three to the Miller heirs.
On March 19, 2001, the Allen heirs filed a motion to alter,
vacate or amend; that motion was overruled on April 28, 2001.
On
May 10, 2001, the Allen heirs filed this appeal.
The Allen heirs first cite as error the clerk’s failure
to serve notice of the filing of the recommended judgment as a
grounds for a dismissal.
We agree.
The clerk filed the
recommendation of the Special Commissioner, which was sent to the
Circuit Judge and was then signed without any notice having been
given to the parties as required by CR1 53.06, which provides:
The commissioner shall prepare a report of
his recommendations to the court upon the
matter and, if required to make findings of
fact and conclusions of law, he shall set
them forth in the report.
Within ten days after being served with
notice of the filing of the report any party
may serve written objections thereto upon the
other parties. Application to the court for
action upon the report...shall be by motion.
The court after hearing may adopt the report,
or may modify it, or may reject it in whole
or in part, or may receive further evidence,
or may recommit it with instructions.
An appellant must have an opportunity to make timely
objections to a Commissioner’s report and to ask for a hearing on
those objections.
Kelley v. Fedde, Ky., 64 S.W.3d 812, 814
(2002), construing CR 53.06(2).
“While a full-blown evidentiary
hearing is not contemplated by [CR 53.06], the parties must be
1
Kentucky Rules of Civil Procedure.
-4-
afforded an opportunity for oral argument.”
Id. (Citing Haley v.
Haley, Ky. App., 573 S.W.2d 354 (1978)).
Pursuant to CR 53.06(1), the clerk was required to
serve the recommended findings of February 23, 2001, upon all
parties in the action.
Because of this omission, the Allen heirs
and the Miller heirs were not afforded the right to “serve
written objections” to the findings before the judgment was
entered in March.
Thus, not only were the Allen heirs unable to
exercise their right to file objections; but they also lost the
opportunity to present their objections in a hearing before the
court.
At a minimum, the Allen heirs were entitled to an oral
argument before the court.
Kelley, supra at 814.
We will refrain from discussing the outstanding issues
and disputes as to material facts that additionally appear to
render the summary judgment premature in this case.
We vacate
this judgment and remand in light of CR 53.06 for further action
of the Magoffin Circuit Court consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES:
J. Scott Preston
Paintsville, Kentucky
Larry D. Brown
Prestonsburg, Kentucky
-5-
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