MARIANNA ASHEY v. CITY OF LAGRANGE; CITY OF LAGRANGE FOUNDATION, INC.; THE LAGRANGE PARK BOARD
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RENDERED: DECEMBER 14, 2007; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-000497-MR
MARIANNA ASHEY
v.
APPELLANT
APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE TIMOTHY E. FEELEY, JUDGE
ACTION NO. 06-CI-00194
CITY OF LAGRANGE; CITY OF
LAGRANGE FOUNDATION, INC.; THE
LAGRANGE PARK BOARD
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: HOWARD,1 NICKELL AND TAYLOR, JUDGES.
HOWARD, JUDGE: Marianna Ashey (hereinafter Ashey) appeals a February 7, 2007,
order of the Oldham Circuit Court, granting summary judgment in favor of the City of
LaGrange (hereinafter LaGrange), adjudging Ashey to have no ownership interest in a
1
Judge James I. Howard completed this opinion prior to the expiration of his appointed term of
office on December 6, 2007. Release of the opinion was delayed by administrative handling.
disputed strip of land adjoining her property on one side, and designating it as a public
pass-way. Finding no error, we affirm.
In 1908, LaGrange annexed a parcel of land known at that time as the W. Z.
Russell Addition. The annexation was authorized by two separate ordinances. A plat was
recorded by Mr. Russell, showing the now-named Monroe and Maple streets. The
presently disputed strip of property, adjoining that now owned by Ashey, is a portion of
what was designated as “Monroe Street” on the Russell plat. However, the land was not
developed, nor the streets improved at that time.
In the 1950's, a city sewer easement was run along the disputed portion of
“Monroe Street.” The Utility Commission's plat showed the now disputed strip as a
public easement. In 1958, the city annexed some additional property, including the tract
now owned by Ashey. The ordinance and judgment annexing Ashey's property also
defined the disputed strip as a portion of Monroe Street.
In 1988, Tri-County Properties, Inc., purchased a large parcel of land,
including what is now Ashey's property. This is when Ashey's parcel, consisting of 0.277
acres, was first surveyed off from the larger tract and was sold to William Morgan and
his wife. The Morgan deed contained a metes and bounds description and incorporated a
survey plat, which stated that it was “subject to all legal rights of way, pass-ways,
easements and restrictions apparent or of record.” Once again, this survey described the
now disputed strip of property as a portion of Monroe Street which was “never opened.”
Perhaps most importantly, the Morgan deed expressly does not include the disputed strip,
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but rather describes the property conveyed as lying on the “northwest side of Monroe
Street.”
The remainder of the larger property remained intact and was sold to
LaGrange Single Family Homes in 1998, for the purpose of constructing a subdivision. A
subdivision plat was filed, defining the streets and lots, and again designating the disputed
strip of property as a street. The subdivision was never approved and, in 2003, the
property, now known as The Glen, was sold to the City of LaGrange Foundation, Inc.,
who now intends to develop it as a conservation park. At some unknown time, the
owners of what is now Ashey's property and the owners of “Lot 10,” on the other side of
the disputed strip, began using it as a parking area, between their two homes.2
In January, 2004, Ashey acquired her property. Her deed contains an
identical description to that found in the Morgan deed and, like the Morgan deed,
specifically excludes the disputed strip of property. Ashey's deed also references the
1988 survey, which refers to this strip as an unfinished portion of Monroe Street.
Nonetheless, in 2005, when LaGrange announced its intention of improving the disputed
strip as a pass-way to the conservation property, Ashey prepared a “Deed of Restriction,”
signed by her, and recorded it with the Oldham County Clerk on March 14, 2005.
LaGrange then filed this action in circuit court seeking an adjudication that the disputed
parcel is a public right-of-way. Ashey responded, claiming that the property had never
2
Lot 10 was owned by Robert and Joan Beckworth at the time the original action was filed in
circuit court and they were named as co-defendants. However, they are not parties to this appeal.
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been properly accepted by the city; that the city's failure to develop it constituted
abandonment; and that the parcel had been acquired by her predecessors-in-title by means
of adverse possession, and passed to her as such.
In an opinion and order entered February 7, 2007, the circuit court granted
LaGrange's motion for summary judgment and held that the disputed parcel is a public
right of way. The court further held that Ashey had no “right, title, interest or claim” to it
except as a member of the general public, entitled to use it as a public pass-way. This
appeal followed.
When reviewing a trial court's grant of summary judgment, we must
determine “whether the trial court correctly found that there were no genuine issues as to
any material fact and that the moving party was entitled to judgment as a matter of law.”
Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App.1996). Summary judgment is proper
when it appears that it would be impossible for the adverse party to produce evidence at
trial supporting a judgment in her favor. James Graham Brown Foundation, Inc. v. St.
Paul Fire & Marine Ins. Co., 814 S.W.2d 273, 276 (Ky. 1991). An appellate court must
review the record in a light most favorable to the party opposing the motion and must
resolve all doubts in her favor. Steelvest, Inc. v. Scansteel Service Center, Inc., 807
S.W.2d 476, 480 (Ky.1991).
However, “a party opposing a properly supported summary judgment
motion cannot defeat that motion without presenting at least some affirmative evidence
demonstrating that there is a genuine issue of material fact requiring trial.” Hubble v.
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Johnson, 841 S.W.2d 169, 171 (Ky. 1992). See also O'Bryan v. Cave, 202 S.W.3d 585,
587 (Ky. 2006); Hallahan v. The Courier Journal, 138 S.W.3d 699, 705 (Ky.App. 2004).
The only argument Ashey makes on this appeal is that the circuit court's
opinion and order violated the Kentucky Constitution by failing to recognize the
separation of powers outlined in Section 156a. It appears as though this argument
pertains only to that portion of Ashey's original argument claiming that the property had
never been properly accepted by the city. She has apparently conceded her abandonment
and adverse possession arguments, asserted in the circuit court.
Section 156a of the Kentucky Constitution provides as follows:
The General Assembly may provide for the creation,
alteration of boundaries, consolidation, merger, dissolution,
government, functions, and officers of cities. The General
Assembly shall create such classifications of cities as it deems
necessary based on population, tax base, form of government,
geography, or any other reasonable basis and enact legislation
relating to the classifications. All legislation relating to cities
of a certain classification shall apply equally to all cities
within the same classification. The classification of all cities
and the law pertaining to the classifications in effect at the
time of adoption of this section shall remain in effect until
otherwise provided by law.
Regrettably, Ashey's brief does not make clear exactly what she believes to
be the law governing this matter. She complains that the 1908 annexation and/or
dedication of the streets did not comply with the statutory mandates, but does not cite to
any such statutes, in effect then or now, which she asserts were violated. In fact, she
argued in the trial court against LaGrange's reliance on KRS 82.400, which is the specific
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statute which sets out the procedures for dedicating a public way or easement. She
maintains that the legislature has made “many such rules” pertaining to the requirements
for dedicating and maintaining streets, which the circuit court ignored, but she has failed
to point either the circuit court or us to any such specific rule or statute.
In its judgment, the circuit court found that the disputed tract of property
was properly dedicated and accepted by the city of LaGrange, pursuant to Louisville &
Nashville R. Co. v. City of Owensboro, 238 S.W.2d 148, 152, 153 (Ky.App. 1951):
[W]here the owner of land lays the same out into building
lots, streets, and alleys, and exhibits a map of it, which
defines the lots, streets, and alleys, though the streets and
alleys are not yet actually opened, and sells the lots as
bounded by such streets or alleys, this is an immediate
dedication of such street or alley to the use of the purchaser
and to the public. . . .
[A] street dedicated to the purchasers and the public in a
subdivision outside of the city limits automatically became a
city street when the subdivision was taken into the city.
The trial court also found that formal dedication is not required pursuant to
City of Louisville v. Louisville Scrap Material Company, Inc., 932 S.W.2d 352 (Ky.
1996). The court supported its decision with the case of City of Henderson v. Yeaman,
184 S.W. 878 (Ky.App. 1916), which holds that a city may accept a street dedication
when it is ready and that adjoining property owners are estopped from declaring that the
property is not a street.
In reviewing the record, this court concludes that the trial court correctly
interpreted the applicable law and correctly found that no genuine issue exists as to any
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material fact. Over 50 years of documentary evidence unfailingly supports such a
decision. In addition to the 1908 documents, the 1958 ordinance and judgment defines
the disputed strip as a portion of Monroe Street; the 1988 Morgan Deed and survey do the
same, as does the 1998 subdivision plat. Ashey's own 2004 deed, with the same metes
and bounds description as the Morgan deed, not only refers to this adjoining strip as
“Monroe Street,” but specifically describes her property as bordering it, not including it.
Ashey offered absolutely no evidence in the trial court to refute any of this history, or to
support a judgment in her favor. Because it appears that the disputed strip of property
was properly dedicated as a street and accepted by the City of LaGrange in 1908,
according to the law at that time; and because Ashey failed to “present . . . at least some
affirmative evidence demonstrating that there is a genuine issue of material fact requiring
trial,” pursuant to Hubble v. Johnson, supra., the City of LaGrange was entitled to
judgment as a matter of law and summary judgment was appropriately granted.
The summary judgment granted by the Oldham Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Alex F. Talbott
Louisville, Kentucky
Alan N. Linker
Louisville, Kentucky
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