RAYMOND W. STARR, JR. v. MAGNUM DRILLING OF OHIO, INC.; JAMES H. LARGE; CARLA N. LARGE; THOMAS A. CRISP; AND MARY F. CRISP
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RENDERED: MARCH 25, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002774-MR
RAYMOND W. STARR, JR.
v.
APPELLANT
APPEAL FROM LAWRENCE CIRCUIT COURT
HONORABLE STEPHEN N. FRAZIER, JUDGE
HONORABLE DANIEL R. SPARKS, JUDGE
ACTION NO. 02-CI-00171
MAGNUM DRILLING OF OHIO, INC.; JAMES H. LARGE;
CARLA N. LARGE; THOMAS A. CRISP; AND MARY F. CRISP
APPELLEES
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
JUDGE.1
COMBS, CHIEF JUDGE; MINTON, JUDGE; MILLER, SENIOR
COMBS, CHIEF JUDGE:
Raymond W. Starr, Jr., appeals from a final
judgment of the Lawrence Circuit Court entered on December 16,
2003, which held that the appellees, James H. Large and his
wife, Carla N. Large, and Thomas A. Crisp and his wife, Mary F.
Crisp, have a legal right of way to access their real property
1
Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
by means of a passway crossing Starr’s property.
The trial
court concluded alternatively that the disputed passway had been
informally dedicated for public use; that it is a public road
pursuant to the provisions of KRS2 178.025; that the appellees
have an easement following the course of the passway; or that
the public has acquired an easement over the passway through
prescriptive use.
After our review of the record, we disagree
with the alternative conclusions.
Therefore, we vacate and
remand.
In May 1994, the Larges and the Crisps together
purchased more than 250 acres located on the Brushy Fork of Big
Blaine Creek in Lawrence County, Kentucky, for $25,000.00.
Two
months later, Starr bought an adjoining tract of approximately
96 acres for $12,500.00.
The Larges and the Crisps intended to
use their property for commercial oil and gas exploration and
production.3
Starr planned to build a retirement home on his
smaller tract.
At the time that the parties purchased their
respective properties, there was a rough passway leading up a
hollow to the appellees’ property.
The passway linked the
appellees’ property with a gravel road leading to the nearest
2
Kentucky Revised Statutes.
3
Magnum Drilling of Ohio, Inc., wholly-owned by James Large and Thomas Crisp,
holds numerous oil and gas leases for various tracts adjacent to the
appellees’ property at Big Blaine Creek.
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county road.
Both the gravel road and the rough connector
passway are located on Starr’s property.
The appellees had used the disputed passway to access
and to view their property before they decided to purchase it.
However, they did not perform a title examination to confirm any
right of way in order to assert any other means of legal access
to the property.
Starr’s title examination revealed no recorded
easement or county road where the passway crosses his property.
Shortly after purchasing his parcel, Starr blocked access to the
passway -- first with a cable and then with a gate.
In the spring of 2002, Thomas Crisp unloaded a
bulldozer at the passway.
Starr met Crisp at the site, advised
him that he was on private property, and denied him access to
the passway.
Starr told Crisp that the right of way to his
(Crisp’s) property followed the creek bed up the hollow.
Starr
then suggested that Crisp use that route instead of the passway.
In July 2002, the appellees filed a complaint in
Lawrence Circuit Court and alleged that the passway crossing
Starr’s property was a public road.
They sought to enjoin Starr
from interfering with their use of the passway for ingress into
and egress from their property.
On December 8, 2002, the trial court conducted a bench
trial.
Evidence produced at trial indicated the existence of a
recorded easement across Starr’s property that permitted access
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up the hollow and up to the appellees’ property.
however, lay in a branch of Brushy Fork.4
The easement,
According to the
testimony of Clyde Roger Jordan, in the early 1980’s the county
relocated the passway out of the creek bed up to the bank of the
creek, continuing up the hollow to a home occupied by the
Tacketts, the predecessors-in-interest of the appellees.
Jordan, who was a magistrate for the district at that time,
testified that the fiscal court informally arranged with the
Wheelers (Starr’s predecessors-in-interest) to move the passway
out of the creek bed and onto the bank.
Jordan indicated that
the county provided the equipment necessary to grade a roadbed
and then maintained it on an irregular basis until the early
1990’s.
Jordan explained that the road had been constructed
solely for the benefit of the Tacketts, that it led only to
their home, and that it had not been in regular use after the
house was lost to fire in the 1980’s.
Shade Chaffin, road supervisor for the fiscal court,
confirmed that the passway had been relocated as an
accommodation to the Tacketts and pursuant to their request.
Chaffin testified that he did not believe that the road was a
county road.
He was unaware of any formal action to treat the
passway as a county road and did not believe that it was
included on any county road map.
4
This passway is referred to as a “sled road” by several witnesses.
-4-
Starr testified that neither he nor the county had
attempted to maintain the passway since he purchased the
property in 1994.
No evidence was presented to indicate that
the disputed passway had been formally adopted by the county as
a county road.
There was no evidence to indicate that the
passway had ever been noted on any official map as a public
road.
No witness indicated that the passway had ever been in
general use by the public.
However, in an interlocutory order entered on July 14,
2003, the trial court found in favor of the appellees.5
The
court held that the passway had been informally dedicated to
public use by Starr’s predecessors-in-interest and that the
county had sufficiently accepted the passway.
In the
alternative, the court concluded that the road was a public road
pursuant to statute, that the appellees had acquired an easement
following the course of the disputed passway, or that the public
in general had acquired a prescriptive easement over the
passway.
This appeal followed.
As noted earlier, this case was tried upon the facts
without a jury.
Therefore, upon review, the trial court’s
findings of fact “shall not be set aside unless clearly
erroneous.”
CR6 52.01.
Our standard of review also requires
5
The judgment was made final and appealable by way of an agreed order entered
on December 12, 2003.
6
Kentucky Rules of Civil Procedure.
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that “due regard shall be given to the opportunity of the trial
court to judge the credibility of the witnesses.”
Id.
A
finding of fact is not clearly erroneous if it is supported by
substantial evidence.
Owens-Corning Fiberglas Corp. v.
Golightly, 976 S.W.2d 409 (Ky. 1998).
Substantial evidence is
evidence of substance and relevant consequence sufficient to
induce conviction in the minds of reasonable people.
Kentucky
State Racing Commission v. Fuller, 481 S.W.2d 298 (Ky. 1991).
On appeal, Starr argues that the trial court erred by
concluding that the provisions of KRS 178.025(1) govern this
controversy.
We agree.
At the time of the trial court’s ruling, KRS
178.025(1) provided as follows:
[a]ny road, street, highway or parcel of
ground dedicated and laid off as a public
way and used without restrictions by the
general public for five (5) consecutive
years, shall conclusively be presumed to be
a public road.”7
This provision applies only to formally dedicated roadways.
Watson v. Crittenden County Fiscal Court, 771 S.W.2d 47 (Ky.App.
1989).
Since there was no evidence presented in this case to
indicate that the disputed passway was ever formally dedicated
to public use, the provisions of the statute are inapplicable to
our analysis – regardless of the tangential issues of whether
7
The statute was amended effective July 13, 2004, to require public use
without restrictions on a continuous basis for fifteen (15) years.
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substantial evidence would support a finding that the general
public used the passway continually for five years or whether
use of the passway had (or had not) been effectively abandoned.
We also conclude that the trial court erred by
determining that the disputed passway had become a public road
through some informal process involving the parties’
predecessors-in-interest.
The evidence presented at trial
indicated that the Wheelers (Starr’s predecessors-in-interest)
had accommodated the Tacketts (the appellees’ predecessors-ininterest) by permitting them to travel to and from their home by
way of a rough road alongside the creek.
However, there is no
indication that either party intended to permit or to dedicate
the road for use by the general public.
Consequently, the
informal, permissive dedication of the road by Starr’s
predecessor-in-interest for the Tacketts’ private use for
ingress and egress cannot be characterized as having been
intended for the benefit of the public at large.
The passway
did not become a public road.
We do not agree with the court’s alternative
conclusion that the public had acquired an easement by
prescription.
A public road can be established under a theory
of dedication by prescription or estoppel.
286 S.W.2d 894 (Ky. 1956).
Freeman v. Dugger,
“[A] public road may be acquired by
prescription only upon (1) fifteen years public use and (2) a
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like number of years of control and maintenance by the
government.”
Watson, 771 S.W.2d at 48.
However, “[t]he mere
use by a few individuals, from time to time, as distinguished
from the public generally, does not constitute such use as
creates title in the public by prescription.”
Realty Co., 324 S.W.2d 806, 808 (Ky. 1959).
Rominger v. City
Additionally, “the
acts of county officials in improving or maintaining a road,
standing alone, do not constitute a public use capable of
ripening into a prescriptive title. . . .”
Sarver v. County of
Allen, 582 S.W.2d 40 (Ky. 1979).
In this case, there was no evidence of a generalized
public use of the disputed passway.
Aside from sporadic use by
hunters (or perhaps loggers), the evidence indicated
consistently that the private passway was used only to
accommodate the Tacketts or their guests.
their house.
The road led only to
After the fire destroyed the Tackett home in the
1980’s, no general or consistent use was ever again made of the
passway.
The county did not continue to maintain the road, and
it became over-grown and nearly impassable.
Therefore, the
trial court erred by finding that the use of the disputed
passway was of a sufficient magnitude to justify its
classification as a public road.
Finally, we conclude that the trial court erred by
holding that the appellees had acquired an easement over the
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passway.
All evidence indicates that use of the passway at its
inception was permissive.
Therefore, an easement by
prescription could not have arisen in favor of the appellees or
their predecessors-in-interest absent the occurrence of some
distinct and positive act of a claim of right asserted and made
apparent to Starr’s predecessors-in-interest.
“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.”
Gilvin, 59 S.W.3d 468, 476.
Cole v.
There was no evidence presented at
trial to suggest that the appellees’ predecessors-in-interest
ever made such a declaration of right to the passway.
There is no evidence to support the conclusion that
the appellees (or their predecessors-in-interest) obtained a
right to use the passway as a quasi-easement or an easement by
implication.
An easement by implication, or quasi-easement,
occurs when the original property owner creates a passway to
facilitate access to a section of his property.
Harmon, 336 S.W.2d 561 (Ky. 1960).
when:
Kreamer v.
Such an easement arises
(1) there is a separation of title from common ownership,
(2) long and continuous use of the easement existed prior to
separation, and (3) the use of the easement is highly convenient
and beneficial to the land conveyed.
See Bob’s Ready to Wear,
Inc. v. Weaver, 569 S.W.2d 715 (Ky.App. 1978).
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There is no
evidence of record in this case to indicate that the parties’
respective tracts were derived from a common owner.
However,
even if we assume common ownership in the distant past, the
evidence shows affirmatively that usage of the passway did not
commence until after the tracts had already been separated prior
to the acquisition by the present property owners, thereby
negating one of the necessary elements for an easement by
implication.
In summary, we conclude that the trial court erred as
a matter of law by concluding that the appellees or the general
public had acquired a right of way over Starr’s property.
Our
review of the record indicates that the passway was never
dedicated to public use, that it did not become a public road
through any statutory provision, and that it was not an easement
acquired by prescriptive use.
On the contrary, the evidence indicates only that the
passway had been dedicated to the private use of the Tacketts,
the predecessors-in-interest of the appellees.
The use was
discontinued and abandoned by the Tacketts following the loss of
their home in the 1980’s.
Consequently, the passway was in poor
condition at the time that Starr purchased the property in 1994;
there was no effort made to maintain it after Starr acquired the
property.
To Starr’s knowledge, no one asserted any claim of
right until the middle of 2002.
Based on all of these factors,
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the appellees have failed to show that they possess a legal
right to use the passway crossing Starr’s property.
The judgment of the Lawrence Circuit Court is vacated
and remanded for entry of a judgment consistent with this
opinion.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEES:
James H. Moore, III
Ashland, KY
Nelson T. Sparks
Louisa, KY
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