CHESTER D. HUDSON AND BRENDA HUDSON v. GENE S. AYARS
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RENDERED: JANUARY 10, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-002331-MR
CHESTER D. HUDSON AND BRENDA HUDSON
APPELLANTS
APPEAL FROM TRIMBLE CIRCUIT COURT
HONORABLE PAUL W. ROSENBLUM, JUDGE
ACTION NO. 00-CI-00034
v.
GENE1 S. AYARS
APPELLEE
OPINION
REVERSING
** ** ** ** **
BEFORE:
EMBERTON, CHIEF JUDGE; BUCKINGHAM AND PAISLEY, JUDGES.
BUCKINGHAM, JUDGE: Chester D. Hudson and Brenda Hudson appeal
from an opinion and order of the Trimble Circuit Court deciding
that Jean S. Ayars retained a private right-of-way easement over
an abandoned portion of a public road known as Perkinson Lane
across property owned by the Hudsons for the purpose of
reasonable ingress and egress.
1
We reverse.
We note that appellants’ notice of appeal contains a
misspelling of the appellee’s first name, who hereinafter shall
be referred to by her correct name, Jean S. Ayars.
The parties each own property along a path or roadway
known as Perkinson Lane in Trimble County that intersects with
and runs between Highway 42 to the east and Barebone Road to the
west.
A portion extending from Highway 42 to the residential
area of the Hudsons’ property is paved blacktop maintained by the
county.
The remaining portion has some gravel and vegetation and
has not been maintained.
This latter portion is generally
passable with a vehicle except for a portion near Barebone Road
and a section on the Hudsons’ property.
The unpaved portion passes through the Hudsons’
property a distance of approximately 1,400 feet, then traverses
property owned by the Horton family, then through Ayars’s
property, and finally through property owned by Lewis Smith,
where it connects with Barebone Road.
the unpaved portion:
There are two gates along
one at the Ayars-Horton property line and
one at the Horton-Hudson property line.
The Hudsons have placed
obstructions on and prevented unapproved use of the unpaved
portion of Perkinson Lane through their property for access to
Highway 42 since purchasing it.
On March 10, 2000, Ayars filed a petition for
declaration of rights pursuant to KRS2 418.040 against the
Hudsons and the Hortons seeking a declaratory judgment
recognizing Perkinson Lane as a public roadway and enjoining the
Hudsons from interfering with the free use of Perkinson Lane for
ingress and egress to the property along it.
On November 27,
2000, the trial court conducted a bench trial at which six
2
Kentucky Revised Statutes.
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witnesses testified, including Jean Ayars, Chester Hudson, D.L.
Collett, and Jerry Horton.
D.L. Collett testified that he
purchased a parcel of property in 1971 that adjoined property
owned by the Horton family and bordered Barebone Road to the
north.
In 1976, Collett contracted to sell an 87-acre portion of
his property to Jean (Lanter) Ayars and her former husband, with
an actual deed of conveyance being executed in 1987.
This parcel
consisted of the back section of Collett’s property and had no
direct access to a public roadway.
Thus, the Lanters utilized a
private roadway on the northern section of the Collett property
for access between their section and Barebone Road.
Collett
testified that he attempted to prevent general use of the roadway
on his property without permission.
In 1986, Collett sold the remainder or northern section
of his property to Lewis Smith, who voiced some objections to the
use of his property for access to the Ayars section.
Ayars
testified that before her divorce in 1993, she and her former
husband had only occasionally used the property but had never
lived there.
She further testified that, after Smith voiced his
objections, she and her former husband then used Perkinson Lane
and Highway 42 approximately ten times to access their parcel but
on three or four occasions had asked Chester Hudson for
permission to traverse that portion of Perkinson Lane that was on
his property.
She also testified that she had not been to her
property in seven years and had not accessed it by driving past
the Hudsons’ house in about ten years.
She acknowledged that a
segment of the Perkinson Lane roadbed on the Hudson property was
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not currently passable, so she had to go onto part of the
Hudsons’ field before connecting with the paved portion of
Perkinson Lane.
In 1999, Ayars and Smith settled a lawsuit
concerning legal ownership of her 87-acre parcel, but she did not
specifically reserve an easement over the Smith property for
access to her property under the belief that Perkinson Lane was a
public road which she could use to access her land via Highway
42.
The Hudsons purchased their property in 1979 from Dow
and Marilyn Dunlap.
Chester Hudson testified that he had always
prevented passage through his property by way of Perkinson Lane
except on rare occasions when he gave permission such as the few
instances with Ayars and her husband.
Hudson stated there was a
fence and gate across the Perkinson Lane roadway at his property
line next to the Horton property line.
Jerry Horton testified
that Chester Hudson had prevented his family from using Perkinson
Lane for access to other Horton family tracts, but that they had
some access to Highway 42 from Harley Lane, which went to the
northern portion of their land.
On March 17, 2001, the trial court entered its findings
and declaratory judgment recognizing a private easement in favor
of Ayars and the Hortons.
The court found that Perkinson Lane
was a Apublic road@ that had been abandoned, but that the
abutting landowners retained a private easement over the roadway
to the extent that it allowed them a reasonable means of ingress
and egress.
The trial court further held that reasonable use of
the easement included use of a motor vehicle but required Ayars
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to finance the cost for maintenance of the unpaved road and
prohibited use outside the boundaries of the historical roadbed.
The Hudsons filed a motion to alter, amend, or vacate the
judgment, which the trial court summarily denied.
This appeal
followed.
The Hudsons raise several issues involving the
designation of Perkinson Lane as a public road, the abandonment
of any private easement, the reasonable necessity of an easement,
and the feasibility of an easement over Perkinson Lane.
Since
this case was tried before the court without a jury, its factual
findings Ashall 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 witness.@
CR 52.01.
A factual
finding is not clearly erroneous if it is supported by
substantial evidence. See Commonwealth v. Harrelson, Ky., 14
S.W.3d 541, 548 (2000).
Substantial evidence is evidence of
substance and relevant consequence sufficient to induce
conviction in the minds of reasonable people.
Owens-Corning
Fiberglas Corp. v. Golightly, Ky., 976 S.W.2d 409, 414 (1998);
Transportation Cabinet, Dep’t of Highways v. Poe, Ky., 69 S.W.3d
60, 62 (2001).
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.
Cole v. Gilvin, Ky. App., 59 S.W.3d
468, 472 (2001), (citing Church & Mullins Corp. v. Bethlehem
Mineral Co., Ky., 887 S.W.2d 321, 323 (1992)).
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The trial court concluded that the asphalt portion of
Perkinson Lane was a county road.
The court also concluded Athat
Perkinson Lane as a county road does not extend beyond the end of
the asphalt portion.@
However, there is no question that
Perkinson Lane was not a Acounty road@ because there was no
legislative action by the fiscal court accepting the road as part
of the county road system.
See generally KRS Chapter 178; Sarver
v. County of Allen, Ky., 582 S.W.2d 40 (1979).
A roadway or passway may become a Apublic road@ giving
the public a right to an easement by prescription through adverse
use in excess of the statutory 15-year period.
See, e.g.,
Cummings v. Fleming County Sportsmen’s Club, Inc., Ky., 477
S.W.2d 163, 167 (1972); Whilden v. Compton, Ky. App., 555 S.W.2d
272, 274 (1977).
Long continued uninterrupted adverse use of a
passway by the public will create an implied acceptance of a
dedication of the passway as a public road.
Dugger, 286 S.W.2d 894, 896 (1956).
See Freeman v.
The adverse use must be of
the same character, continuity, and duration as is necessary for
creation of a private easement, which in turn requires open,
hostile, actual, notorious, and continuous use.
See Cummings,
supra; Bell v. Smith, 246 Ky. 470, 55 S.W.2d 398 (1932).
AEasements are not favored and the party claiming the right to an
easement bears the burden of establishing all the requirements
for recognizing the easement.@
S.W.3d 484, 490 (2001).
Carroll v. Meredith, Ky. App., 59
A right to use a passway as a
prescriptive easement does not arise if the use is permissive,
but a rebuttable presumption exists if the passway has been used
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uninterruptedly for 15 years or more.
See Ward v. Stewart, Ky.,
435 S.W.2d 73 (1968); Haynes v. Dennis, 308 Ky. 483, 214 S.W.2d
1005 (1948); Lovins v. Denney, 311 Ky. 48, 223 S.W.2d 352, 354
(1949)(involving public passway).
The trial court found that Perkinson Lane was a public
road and that, even though it had been abandoned by nonuse, the
abutting landowners still retained a private easement over the
roadway for reasonable ingress and egress.
Belcher, Ky., 290 S.W.2d 475, 477 (1956).
See Hylton v.
The Hudsons contend
the trial court erred in finding that Perkinson Lane was a public
road.
In order to establish her claim that Perkinson Lane was
a public road, Ayars introduced several maps that included this
roadway and her tax bill referencing Perkinson Lane.
In addition
to this evidence, the trial court also referred to the mention of
Perkinson Lane as a reference point in the property description
for one of the tracts in a deed to the Horton children.
We
believe that this evidence was insufficient to support finding
that the unpaved portion of Perkinson Lane was a public road for
purposes of recognizing a public easement.
None of this evidence
involves information on the extent, duration, or character of use
by the general public and is not necessarily inconsistent with
the existence of Perkinson Lane as a private roadway.
Ayars
testified that there are approximately 16 mailboxes along the
paved portion of Perkinson Lane, whereas there are none along the
unpaved portion on the Horton, Ayars, and Smith properties.
AThe
sporadic use of a passway by a few neighbors or members of the
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general public does not turn it into a public road.@
at 474.
Cole, supra
See also Rominger v. City Realty Co., Ky., 324 S.W.2d
806, 808 (1959).
Ayars simply failed to present sufficient
evidence of continuous, uninterrupted use by the public in excess
of 15 years to establish a public easement or right-of-way.
The
finding that Perkinson Lane was a public road was clearly
erroneous as unsupported by substantial evidence.
As a result,
Ayars acquired no right of reasonable ingress and egress by
virtue of being a landowner abutting a legally recognized Apublic
road.@
The Hudsons also argue that even if Perkinson Lane was
at one time a public road that had been abandoned by the public,
any right or easement Ayars may have acquired was forfeited or
abandoned because of their conduct preventing anyone from using
it without their permission.
It is well-established that an
easement acquired by grant or by prescription may be extinguished
by nonuse under circumstances indicating an intention to abandon
it extending over a 15-year period of time sufficient to create a
prescriptive easement.
See Childers v. Burger, 231 Ky. 508, 21
S.W.2d 805 (1929); Jones v. Dunn, 305 Ky. 502, 205 S.W.2d 156
(1947).
While nonuse alone provides some evidence of an intent
to abandon an easement, acts of the servient tenement owner
inconsistent with enjoyment of the easement by the dominant
tenement owner for a 15-year period will extinguish the easement.
AAdverse possession and use for the prescriptive period will
terminate an easement, but to be effective, adverse possession of
a right of way by the servient owner must be of the same
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character required to obtain title to real estate and the use
must be wholly inconsistent with the right to enjoy the easement
and amount to an ouster of the dominant owner.@
Shade v.
Simpson, 295 Ky. 45, 173 S.W.2d 801, 803 (1943).
See also City
of Harrodsburg v. Cunningham, 299 Ky. 193, 184 S.W.2d 357, 359
(1944); Restatement of the Law of Property § 506 (1944); Funk v.
Whitaker, 314 Ky. 204, 234 S.W.2d 675, 676 (1950).
In the current case, the Hudsons adversely possessed
that portion of the Perkinson Lane roadway on their property
since 1979, a period in excess of 15 years.
They gave notice of
their adverse possession by preventing others, including the
Hortons and Ayars (and her former husband), from using the
roadway without their permission.
Ayars admitted that she asked
Chester Hudson for permission to cross his property whenever he
was present.
There were two gates across the roadway at the
Hudsons’ property lines that they periodically kept closed.
Chester Hudson also plowed and planted crops on a portion of the
roadbed and placed other obstacles on it.
The trial court erred
by failing to recognize that even if Perkinson Lane had been a
public road and Ayars had retained a private easement upon
abandonment by the public, her right-of-way easement was
extinguished or lost due to adverse possession of the easement by
the Hudsons for the requisite time period.
During the trial, Ayars countered the Hudsons’
extinguishment by adverse possession argument by referencing KRS
413.050(2), which provides that a statute of limitations will not
begin to run in favor of any person in possession of any part of
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a public road until written notice of adverse possession is given
to the county judge-executive of the county where the road is
situated.
Chester Hudson admitted that he never gave notice of
his adverse claim or possession to the Trimble county judgeexecutive.
This statute, however, applies to public roadways
that have been accepted by the county or dedicated to the public,
not public roads with a public easement created solely by
prescriptive use by the public.
See, e.g., Salyers v. Tackett,
Ky., 322 S.W.2d 707 (1958); Home Laundry Co. v. City of
Louisville, 168 Ky. 499, 182 S.W. 645 (1916); Morrison v. Town of
West Point, 219 Ky. 397, 292 S.W. 1095 (1927).
Moreover, this
statute protects only the rights of the public to the use of the
roadway and not the private right of an abutting landowner to
ingress and egress from a claim of adverse possession of a public
road.
See Home Laundry, supra at 650.
As a result, this statute
does not apply because Perkinson Lane was not formally accepted
by the county and there is insufficient evidence that it was
dedicated for public use, and any right retained by Ayars upon
abandonment of the public prescriptive easement was a private
easement based on the property’s location abutting Perkinson
Lane.
Thus, the Hudsons did not have to provide notice to the
county judge-executive before their limitations period for
purposes of adverse possession began to run as against Ayars’s
interest in the right-of-way.
At any rate, this statute is not
applicable since we have held that the road was not proven to be
a Apublic road@ and the statute applies only to public roads.
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For the foregoing reasons, the judgment of the Trimble
Circuit Court is reversed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Alan Q. Zaring
New Castle, Kentucky
Harold W. Thomas
Louisville, Kentucky
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