MICHAEL D. GOSNEY; DONNA R. GOSNEY APPEALS v. DONALD GLENN; ANGELA GLENN; RICH GLENN
Annotate this Case
Download PDF
RENDERED:
April 15, 2005; 10:00 a.m.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2004-CA-000169-MR
AND
NO. 2004-CA-000965-MR
MICHAEL D. GOSNEY;
DONNA R. GOSNEY
v.
APPELLANTS
APPEALS FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 02-CI-01950
DONALD GLENN;
ANGELA GLENN;
RICH GLENN
APPELLEES
OPINION
AFFIRMING
** ** ** ** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; McANULTY, JUDGE; MILLER, SENIOR
JUDGE.1
MILLER, SENIOR JUDGE:
Michael D. Gosney and Donna Gosney appeal
from judgments of the Kenton Circuit Court determining that they
do not have the right to use a passageway crossing the
appellees’ property as an access way to reach their property and
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
Kentucky Revised Statute 21.580.
awarding damages for their trespass onto the appellees’
property.
The appellants claim that they are entitled to use
the passageway on the basis of easement by estoppel; easement by
necessity; and on the basis that the passageway is an
unabandoned county road.
For the reasons stated below, we
affirm.
By deed dated May 22, 2001, Appellants Michael and
Donna Gosney, husband and wife, acquired a 10.7-acre tract of
property located in Morningview, Kentucky.
The appellants
purchased their 10.7-acre tract from Ernest and Sandra Gosney,
Michael’s brother and sister-in-law.
Appellees Donald and Angela Glenn, husband and wife,
reside at 14471 Stephenson Road, Morningview, Kentucky, on a
one-acre tract at the terminus of the paved portion of
Stephenson Road.
They acquired their one-acre tract by deed
dated May 20, 1998, from Donald’s parents, Rich Glenn and Esther
Glenn.
Donald and Angela also own an adjacent unimproved 7.9-
acre tract acquired from Rich and Esther Glenn by deed dated
June 18, 1998.
This property is to the north and west of Donald
and Angela’s one-acre tract.
Rich Glenn and Esther Glenn were the owners of, and
resided on, a 20.484-acre tract acquired by deed dated September
1, 1967.
This tract was the source of Donald and Angela’s one-
acre tract.
Esther Glenn died prior to the filing of this
2
action; Rich Glenn, who was a party to the circuit court
proceedings and is named as an appellee in the present appeal,
died on November 1, 2003, after the filing of this action.
The Gosneys contend that they are entitled to traverse
a passageway running across the Glenn property in order to reach
their ten-acre tract to the north.
The disputed portion of the
passageway begins at the end of the paved portion of Stephenson
Road at the junction of the two Glenn tracts.
The paved portion
of Stephenson Road runs to the northwest and terminates at the
southwest boundary of Michael and Donna’s one-acre tract.
It is
undisputed that this portion of the access way is a county road
maintained by the Kenton County Road Department.
At the
conclusion of the paved portion of Stephenson Road, the
passageway runs toward the northeast for approximately 280 feet
to an old gate (referred to in the record as “the first gate”)
at a common corner of the two Donald and Angela Glenn tracts and
the Rich Glenn tract.
After the first gate, the passageway turns back to the
northwest for a distance, and then to the north.
There is a
discernable passageway beyond the first gate, which serves as
the boundary between the Donald and Angela Glenn 7.876-acre
tract and the Rich Glenn tract for approximately 831.17 feet.
The Gosney tract is accessible from the south by this
passageway.
3
According to the Gosneys, Michael first began
traveling to the 10.7-acre tract in contemplation of purchasing
it in early 1998.
Michael testified that beginning at that time
he would access the 10.7-acre tract by the disputed passageway.
Michael testified that he believed he had a right to use the
passageway because Rich Glenn had indicated to him that the
passageway was the right-of-way of Old Stephenson Road, which
Michael interpreted to mean that the general public had a right
to use the passageway.
Gosney testified that in the following
years he accessed the property by this route on a regular basis
and made clear to the appellees that it was his intent to buy
the property and construct a residence thereon.
In December 2001, after the Gosneys had purchased
their tract and had commenced improvements to the passageway,
Donald and Angela sent a letter to the Gosneys advising them
that they could no longer travel on the disputed passageway, and
informing them that any such use of the passageway would be
considered as a trespass.
It appears, however, that the Gosneys
continued to make use of the passageway, and, further, commenced
making improvements to it.
On July 25, 2002, Donald, Angela, and Rich Glenn filed
a complaint in Kenton Circuit Court seeking to enjoin the
Gosneys from using the passageway and seeking damages for their
alleged trespass.
4
The Gosneys filed their answer and counterclaim which,
as amended, alleged that the passageway is a county road or,
alternatively, that they were lawfully entitled to use the
passageway based upon prescriptive easement, easement by
necessity, and easement by estoppel.
Following a bench trial, on August 14, 2003, the trial
court rendered its Findings of Fact, Conclusions of Law, and
Judgment.
The trial court determined that the passageway was
not a county road, and that the Gosneys did not have a right to
traverse the passageway based upon easement by necessity,
easement by prescription, or easement by estoppel.
On December
23, 2003, the trial court entered an order making its August 14,
2003, order final and appealable.
The Gosneys subsequently
filed an appeal of the December 23, 2003, order (Appeal 2004-CA000169-MR).
Following a hearing concerning damages as a result
of the Gosneys’ trespass onto the passageway, on April 13, 2004,
the trial court entered an order awarding the Glenns total
damages of $2,020.00.
The Gosneys subsequently appealed the
order setting damages (Appeal 2004-CA-000965-MR).
First, the Gosneys contend that the trial court erred
by failing to find an easement by estoppel across the passageway
in their favor.
We begin by noting that this case was tried by the
circuit court sitting without a jury.
5
It is before this Court
upon the trial court's findings of fact and conclusions of law
and upon the record made in the trial court.
Accordingly,
appellate review of the trial court's findings of fact is
governed by the rule that such findings shall not be set aside
unless clearly erroneous.
A factual finding is not clearly
erroneous if it is supported by substantial evidence.
Owens-
Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky.
1998); Uninsured Employers' Fund v. Garland, 805 S.W.2d 116, 117
(Ky. 1991).
Substantial evidence is evidence, when taken alone
or in light of all the evidence, has sufficient probative value
to induce conviction in the mind of a reasonable person.
Golightly, 976 S.W.2d at 414; Sherfey v. Sherfey, 74 S.W.3d 777,
782 (Ky.App. 2002).
Ky. R. Civ. P. (CR) 52.01; Largent v.
Largent, 643 S.W.2d 261 (Ky. 1982).
The trial court's
conclusions of law, however, are subject to independent de novo
appellate determination.
A & A Mechanical, Inc. v. Thermal
Equipment Sales, Inc., 998 S.W.2d 505, 509 (Ky.App. 1999);
Morganfield National Bank v. Damien Elder & Sons, 836 S.W.2d 893
(Ky. 1992).
Generally, an easement may be created by express
written grant, implication, prescription or estoppel.
Loid v.
Kell, 844 S.W.2d 428, 429 (Ky.App. 1992)(citing Grinestaff v.
Grinestaff, 318 S.W.2d 881, 884 (Ky. 1958) and Holbrook v.
Taylor, 532 S.W.2d 763, 764 (Ky. 1976)).
6
Easements are not
favored, and the party claiming the right to an easement bears
the burden of establishing all the requirements for recognizing
the easement.
Carroll v. Meredith, 59 S.W.3d 484, 489-490
(Ky.App. 2001).
An easement by estoppel 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.
Cole v. Gilvin,
59 S.W.3d 468, 477-478 (Ky.App. 2001).
An easement by estoppel is based upon the principles
of equitable estoppel.
(Ky. 1966).
Smith v. Howard, 407 S.W.2d 139, 143
The essential elements of equitable estoppel are:
(1) Conduct which amounts to a false
representation or concealment of material
facts, or, at least, which is calculated to
convey the impression that the facts are
otherwise than, and inconsistent with, those
which the party subsequently attempts to
assert; (2) intention, or at least
expectation, that such conduct shall be
acted upon by the other party; (3)
knowledge, actual or constructive, of the
real facts. As related to the party
claiming the estoppel, they are: (1) Lack of
knowledge and of the means of knowledge of
the truth as to the facts in question; (2)
reliance upon the conduct of the party
estopped; and (3) action based thereon of
such a character as to change his position
prejudicially.
7
Id.
The Gosneys allege an easement by estoppel based upon
the following factors:
the Gosneys accessed the 10.7-acre tract
over the disputed passageway and the Glenns were aware of this
access; the Gosneys told the Glenns that they intended to
purchase the property; various statements were made by Rich
Glenn concerning access to the land; the existence of a rightof-way by prescription in the deed to the Glenns’ one-acre
tract; the Gosneys having spent approximately $22,021.60 to
acquire and improve their tract; and because the Glenns stood by
while the Gosneys acted in reliance on their belief that they
would be entitled to access their tract through the disputed
passageway.
The trial court made the following finding relative to
the Gosneys’ claim of easement by estoppel:
Based on the testimony from the parties, the
Court finds [that the] Gosneys' purchase of
[their] property and actions in clearing and
fencing [their] ten (10) acre property were
not in reliance on statements made by
[Donald] Glenn or Rich Glenn that right-ofway, passageway, or access to Gosneys'
property was available through the Glenn
properties.
Testimony was presented at trial supporting the trial
court’s finding.
The Glenns presented testimony that the
Gosneys merely had permission to occasionally access the land
through the disputed passageway; that Donald Glenn never had
8
knowledge of the Gosneys’ intention to access their tract
primarily through the disputed tract; that the Gosneys never
communicated to either Rich Glenn or Donald Glenn their
intention of making the disputed passageway the primary means of
access to their tract; and that the only actions by the Gosneys
to improve the passageway were to lay a small amount of gravel,
trim some trees, and tear down an existing gate.
The trial court’s finding that the Gosneys did not
purchase their tract or undertake other activities on their
property in reliance upon statements or actions by the Glenns is
supported by substantial evidence.
Moreover, we note that the
Glenns were not in unique control of the relevant facts
concerning the passageway, and the Gosneys had the means,
through appropriate inquiry and investigation, of ascertaining
the correct facts concerning the passageway.
The trial court
did not err in its finding that the Gosneys did not have a right
to traverse the passageway based upon an easement by estoppel.
Next, the Gosneys contend that the trial court erred
by failing to find an easement by necessity across the
passageway in their favor.
An easement by necessity is based primarily on the
policy favoring beneficial use of property.
Carrol, 59 S.W.3d
at 491 (citing Warfield v. Basich, 161 Cal.App.2d 493, 498, 326
P.2d 942 (1958)).
Unlike a quasi-easement involving prior use,
9
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.
Id.
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.
Id.
(citing 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.Cmwlth. 1996); Albert G. Hoyem Trust v. Galt, 292 Mont. 56,
61, 968 P.2d 1135, 1138 (1998); and Thompson v. Whinnery, 895
P.2d 537, 540 (Colo. 1995))
Necessity of access is the primary factor for the
existence of an easement by necessity.
Id.
Indeed, a
requirement of "strict" necessity has traditionally applied to
easements or ways of necessity.
Id. (citing Marrs v. Ratliff,
278 Ky. 164, 128 S.W.2d 604, 609 (1939)(way of necessity
involves "strict necessity; mere convenience will not do") and
Kentucky Revised Statutes (KRS) 416.350, which creates a private
right of eminent domain to acquire a right-of-way for landlocked
property).
10
An easement by necessity generally will not be implied
if the claimant has another means of access to a public road
from his land however inconvenient.
Id. (citing 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)).
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 road.
Id.
(citing 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 Steenwyk, 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
11
private condemnation statute applying reasonable necessity
standard)).
A party seeking an implied easement has the burden of
proving the existence of the easement by clear and convincing
evidence.
Id. at 491-92 (citing 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)).
In its findings of fact and conclusions of law the
trial court made a finding that
Gosney has other means of access to his
property. Gosney purchased the back ten
(10) acre parcel of his brother’s property
and could access a public road through his
brother’s remaining property.
Evidence presented at trial disclosed that the Gosneys
purchased their tract from Michael’s brother, Ernie Gosney.
Gosney testified that, with his brother’s permission, he had
bulldozed a passageway across his brother’s property to his
tract so as to create an access way to Kentucky Highway 17.
While the Gosneys argue that the passageway across
Ernie’s land permits access to their tract only by tractor or
four-wheeler, nevertheless, it was the Gosneys’ burden to
establish by clear and convincing evidence that there was no
other access way other than the disputed passageway.
By
Michael’s own testimony, there is another access way to his
property.
We accordingly conclude that the trial court’s
12
finding was not clearly erroneous under the clear and convincing
evidence standard.
Finally, the Gosneys contend that the trial court
erred by failing to find that the disputed passageway is a
county road.
In support of their position that the disputed
passageway is a county road, the Gosneys cite us to a map titled
“Map of Kenton County, Kentucky, made for and accepted by the
Fiscal Court A.D. 1914 . . . .”
The trial court made the
following findings of fact relevant to this issue:
12. James Bertram, a surveyor hired by
Gosney to prepare a boundary survey of the
Gosney property, testified that while the
1914 Map of Kenton County, Kentucky, did
show Stephenson Road connecting between
Green Road and Bract-Piner Road, this 1914
Map was never adopted or approved by the
Kenton County Fiscal Court as an official
county road map depicting county roads and
rights-of-way in Kenton County.
13. A map, prepared by surveyors Noel
Walton and David Walton, based on paved
roads and deeds of property in the area,
depicted and showed Stephenson Road ending
at Frank Rust’s property and not connecting
through from Bract-Piner Road to Green Road.
14. William Deupree, III, Esq., a real
estate attorney who performed a title
examination for the Gosneys in the Kenton
County Real Estate Records at Independence,
Kentucky relating to the property owned by
the Glenns and Gosneys, found isolated calls
and references to Stephenson Road in various
deeds but did not find any written offer or
acceptance of Stephenson Road in any
13
instrument recorded in the Kenton County
Real Estate Records. Deupree found no
easement, right-of-way or passway in the
Gosneys' chain of title granting a right-ofway, passage or passway through the Glenn
properties to “Old Stephenson Road.”
Likewise, Mr. Deupree did not find an
easement, right-of-way, or passway in the
Glenns’ chain of title, granting a right-ofway, or access through the Glenn properties
from Stephenson Road to “Old Stephenson
Road.”
15. Both James Bertram and William Deupree,
III, Esq. concluded that the 1914 Map of
Kenton County, Kentucky was never adopted by
the Kenton Fiscal Court nor did they find
any of the official Kenton County Fiscal
Court minutes that the 1914 Map of Kenton
County, Kentucky, was adopted as or ordered
to be the official county road map depicting
and showing the county roads in Kenton
County, Kentucky in the year 1914.
16. William Deupree, III, did find that the
1971 Kenton County Road Series Map and the
1990 Kenton County Road Series Map had been
formally adopted by the Kenton County fiscal
Court to be the official county road map
depicting the county roads in Kenton County
Kentucky in the year 1971 and in the year
1990. Deupree found that neither the 1971
and 1990 Road Series Maps depicted
Stephenson Road right-of-way as one
continuous right-of-way through from BractPiner Road to Green Road. Deupree found
that both the 1971 and the 1990 County Road
Series Maps showed Stephenson Road ending
where the pavement ends at the Glenn
property.
The current version of KRS 178.010(1)(b) defines
"county roads" as "public roads which have been formally
accepted by the fiscal court of the county as a part of the
14
county road system, . . . ."
The version of the provision
during the trial proceedings defined a county road as a public
road which has "been accepted by the fiscal court of the county
as a part of the county road system after July 1, 1914 . . . .”
Under either version of the statute, the road must
have been accepted by the fiscal court.
Evidence of such
acceptance has not been produced by the appellants and, to the
contrary, the trial evidence indicated that there had been no
such acceptance.
As such, the trial court’s finding that the
disputed passageway is not a county road was not clearly
erroneous.
Finally, the Gosneys raise the issue that if they are
successful in this appeal and are determined to have a right to
traverse the passageway, then the Glenns are not entitled to
damages for trespass.
However, as we have determined that the
trial court did not err in its determination that the Gosneys do
not have such a right, this issue is moot.
For the foregoing reasons the judgment of the Kenton
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES:
David A. Koenig
Florence, Kentucky
Michael T. Sutton
Edgewood, Kentucky
15
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
