LYKINS (HAROLD) VS. TACKETT (RICKY J.), ET AL.Annotate this Case
RENDERED: DECEMBER 12, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM MAGOFFIN CIRCUIT COURT
HONORABLE JOANN SPINKS COLEMAN, JUDGE
ACTION NO. 05-CI-00084
RICKY J. TACKETT, ELIZABETH TACKETT,
DAVID MINIX AND TINA MINIX
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BEFORE: CAPERTON, TAYLOR, AND WINE, JUDGES.
CAPERTON, JUDGE: The appellant, Harold Lykins (Lykins), appeals the
January 4, 2007, Bench Trial Order of the Magoffin Circuit Court denying Lykins’
claim of a prescriptive easement over the land of David Minix (Minix) and his
sister, Elizabeth Tackett (Tackett). Lykins asserts that this decision was clearly
erroneous, not supported by substantial evidence, and should be reversed.
Tackett and Minix, and their respective spouses, filed a trespass action
against Lykins because of his construction of a roadway from his bridge over the
Middle Fork Creek, across their property, and across a portion of property
belonging to Della Arnett (Arnett), to the main black top road called Middle Fork
Road. Lykins apparently constructed the road from the bridge to the main road and
across the Tackett-Minix property by filling in portions of that property with dirt to
a depth of 10 to 12 feet.
Tackett and Minix inherited their tract of property from their mother,
Sharon Minix. Sharon Minix’s will was probated in Magoffin District Court on
September 10, 1997. Sharon had previously inherited an interest in that property
from her father, Corbett Arnett, and purchased the remaining interest from her
mother, Ruth Arnett, by deed dated July 27, 1988. Tackett testified that her family
had owned this particular tract of property for over 100 years prior to this court
Lykins purchased his property from the heirs of Claude Gose on April
28, 1988. Prior to purchasing that property, Lykins purchased an adjoining tract of
property, previously known as the Watt Patrick Farm, in 1973. Lykins asserts that
the prior owners of these tracts of land accessed their property by crossing the
Middle Fork Creek at a ford, and then travelling the road in question to the
blacktop road. Lykins asserts that he constructed the concrete bridge at the
location of the old ford.
On April 18, 2005, Tackett and Minix filed suit against Lykins and his
sister, who was mistakenly assumed to be his wife, and ultimately did not
participate in this suit. The complaint filed by Tackett and Minix alleged trespass
by Lykins in the construction of the roadway over their property. Lykins filed an
answer and counterclaim, alleging that the roadway in question was either a county
roadway or, alternatively, that Lykins and his predecessors in title had acquired a
prescriptive easement for the roadway.
Elizabeth Tackett was called to testify in this matter, and stated that
she and her parents lived in the Dixie Addition of Salyersville, Kentucky, but
raised gardens on their farm, and also rented out a house on that land. Tackett
testified that during her childhood, her mother would travel to the farm at least
once per day in the summer, and once or twice a week during the remainder of the
year. Tackett further testified that as a child she swam in Middle Fork Creek in the
area where the bridge was constructed by Lykins. Tackett testified that some parts
of the creek were over her head, and some parts were shallow. Tackett testified
that in all the years her family has owned the property, she has never seen anyone
drive a motor vehicle through the creek, and that the texture of the creek bottom
would make that impossible.
Tackett testified that there was an old walk bridge across Middle Fork
Creek which spanned from Arnett’s property to Harold Lykins’ property. That
bridge was approximately 300 to 500 feet from both the location of the concrete
bridge constructed by Lykins and the roadway that he built across the Tackett
property. Tackett testified that there was a wire fence surrounding her property,
which was constructed in the 1980’s, and which spanned from Middle Fork Road
to the property of Della Arnett.
Tackett and Minix apparently discovered Lykins’ intention to
construct a bridge across Middle Fork Creek and the accompanying road over their
property when neighbors called to inform her that someone was bulldozing on her
property. Tackett testified that she sent a letter to the Army Corps of Engineers
protesting the construction of the bridge, and that she also called Lykins at his
Ohio residence to inform him that he was on her property, and to request that he
immediately cease construction of the connecting road.
Arnett testified in this matter by deposition. She testified that she had
given easement to Lykins to construct a bridge across Middle Fork Creek from his
property onto her property. Arnett testified that although there used to be a
swinging bridge used to cross Middle Fork Creek from her property, the concrete
bridge constructed by Lykins was not in this location. Arnett viewed photos of
remnants of the swinging bridge, and identified those remnants as the bridge that
Claude Gose, one of Lykins’ predecessors in title, used to cross the creek. Arnett
testified that the two ways for Gose to access the property were either to utilize the
swinging bridge or to travel a back way. Arnett testified that in the past 87 years,
she has never seen anybody take horses or cattle across Middle Fork Creek in the
area where Lykins built the bridge, nor has she ever seen anybody drive a motor
vehicle through the creek at that point. Arnett further testified on crossexamination that there was never a low water ford in the area where Lykins
constructed the concrete bridge.
Minix, who owns the property at issue jointly with Tackett, testified
that in 1978, an oil well company bulldozed some trees and drilled an oil well on
their property, and in the process constructed a well road from the blacktop road to
the well site. Minix testified that the well road did not extend past the oil well, as
the creek bottom was lower than the well and swampy. Minix also testified that he
had never seen anyone drive a motor vehicle through Middle Fork Creek in the
area where Lykins constructed the bridge.
Tackett’s husband, David, also testified in this matter, stating that the
depth of the fill dirt placed by Lykins on the Tackett-Minix property was over 12
feet in some areas, and was approximately seven or eight feet near the bridge.
David further testified that near the remnants of the swinging bridge on the Arnett
property, approximately 300 feet from the concrete bridge built by Lykins, there
was evidence of a low water ford. David testified that there was no evidence of a
low water ford where Lykins constructed the concrete bridge.
Magoffin County Judge Executive Bill May also testified in this
matter. He stated that he was approached by Tackett when Lykins published plans
to construct his bridge across Middle Fork Creek. Judge May testified that as
County Judge Executive, it was his duty to keep a map of all of the county and
public roads in Magoffin County. Judge May testified that the roadway which
Lykins claims existed over the Tackett-Minix property does not appear on any
portion of the county road map for Magoffin County.
Harold Minix is the father of Elizabeth Tackett and David Minix. He
testified that he and his wife, Sharon, married in 1965 and that he was familiar with
the property on Middle Fork Creek because they rented out the house on the
property and raised gardens there. Harold testified that he has never seen anyone
drive a motor vehicle through Middle Fork Creek to their property, and that the
area in which Lykins built the bridge was too swampy and silty to be traversed by
motor vehicles. Harold testified that upon discovering that Lykins was going to
build the bridge and attempt to construct a road across his son and daughter’s
property, he informed Lykins that he did not have a right to put fill dirt or build a
road across the property, as no roadway or pathway had ever existed there
Homer May, a second cousin to Tackett and Minix, testified that he
was familiar with the Middle Fork property, and the area in which Lykins built the
bridge and roadway. May testified that there was never a low water ford or any
way for people to cross the creek in the area where Lykins built the bridge.
Further, May testified that he had never seen anyone cross the creek at that location
by motor vehicle.
John David Bailey, son-in-law of Arnett, also testified in this matter,
and was familiar with Arnett’s property on Middle Fork Creek. Bailey testified
that he has never seen anyone cross the creek in a motor vehicle at the location
where Lykins constructed the concrete bridge. Bailey also testified that an old
creek ford was located by the swinging bridge approximately 400 to 500 feet from
where Lykins constructed his concrete bridge.
Lykins himself also testified in this matter, stating that he had been
raised one mile from the road in question, and had traveled over the road for as
long as he could remember, both on horses and in wagons, and later in vehicles.
Lykins testified that he never requested anyone’s permission to travel the roadway,
and that he had used the roadway for more than fifteen continuous years. Lykins
asserts that the location in which he built his bridge is the same as where the ford
went into and out of the creek.
James Gasparac, a witness called on behalf of Lykins, testified that he
had lived on Gose Branch until 1964, at which time he moved to an area nearby.
Gasparac testified that he and the Risner family had travelled the road in excess of
fifteen continuous years, which apparently occurred from the 1960s until sometime
in the 1970s. Gasparac testified that he never drove a car or truck across the creek,
but had driven a big dozer across the creek when the water was really low.
Gasparac testified that other people had driven across the creek and that people
used the swinging bridge much more often than they used the creek ford.
Paul Gasparac, James Gasparac’s brother, testified that the Gasparacs
lived on Gose Branch until 1964, and that on one occasion, he had traveled across
the low water ford with Watt Patrick and Frank Risner. However, Paul Gasparac
could not testify as to whether or not the low water ford had been used for 15
continuous years for vehicle traffic. Gasparac testified that the ford was located
just below the swinging bridge.
Lykins also called his brother, J.T. Lykins, as a witness in this matter.
J.T. testified that he is eighty years old, and had, on one occasion, forded Middle
Fork Creek in a motor vehicle sometime in the 1970s. J.T. testified that he had
only done this on one occasion, and had never seen anyone else drive across the
creek in a motor vehicle.
Lykins also called Paul Bussey to testify in this matter. Bussey
testified that he used the roadway almost every day for a year in direct
examination. However, on cross-examination, Bussey acknowledged that at times,
he could not use the ford when the water was too high due to the amount of rain.
Bussey also testified that in the 1970s, a wooden bridge was constructed on Middle
Fork and most people utilized it. Bussey testified that the roadway was used for
fifteen or more continuous years by people who lived in the area.
Harold Rowe also testified in this matter. Rowe testified that he has
lived in the Middle Fork area of Magoffin County for the past forty years, and that
he lives approximately one-fourth of a mile from Lykins’ property. Rowe testified
that he was employed as a grader operator in the past for Magoffin County under
two different administrations. Rowe testified that he never operated a grader or
any county equipment in the area of the gravel road constructed by Lykins from
the concrete bridge up to Middle Fork Road. Rowe further testified that he was
familiar with the ford in the Middle Fork Creek, that he had seen the Gose family
take a wagon and pair of horses across the creek, and that this was near the location
of the previous swinging bridge, and not where Lykins later built the concrete
bridge. Rowe testified that he never saw anyone cross the creek at the location of
the Lykins’ bridge in a truck or car.
Arville Howard testified in this matter as well, stating that from 1970
through 1977 or 1978, he used the ford only during the summer months when the
creek was low enough to “get in it.” Howard testified that the ford was at the same
location as the new bridge, and that the roadway had been used continuously for
over fifteen years. Howard further testified that in the mid-1970s, a wooden bridge
was constructed on his property across the creek which provided everyone with
another way to cross the creek aside from the low water ford.
Finally, Pat Montgomery, a former sheriff of Magoffin County,
testified that he lived on the property now owned by Lykins from 1968 until 1978.
Montgomery was uncertain as to the location of the ford in respect to the new
bridge, but did remember the roadway being used since 1953. Further,
Montgomery stated he had seen the County grade the road in dispute, and that the
roadway had been used for vehicular travel for over fifteen years. M.J. Spurlock,
who worked for the Magoffin County Road Department for twenty-six years,
testified that he had graded the road in question.
A bench trial was held in this matter before the Magoffin Circuit
Court on May 1, 2006. After hearing evidence from both parties, the case was left
open for the taking of additional witness testimony by deposition. Lykins asserts
that though additional witnesses testified and their depositions were filed with the
court clerk, they were not initially considered by the Special Judge, who was not
provided with the additional testimony.
On January 4, 2007, the circuit court issued a decision in favor of
Tackett and Minix, finding that Lykins had not obtained a right to travel the
roadway by prescriptive easement. Lykins filed a motion to alter, amend, or vacate
the judgment pursuant to Kentucky Rules of Civil Procedure (CR) 59, arguing that
the court did not consider the testimony of the additional witnesses taken by
deposition. This motion was overruled on May 31, 2007, and this appeal followed.
On appeal to this Court, Lykins asserts that the trial court erred in
ruling that Lykins had not acquired a prescriptive easement over the Tackett-Minix
property. We note first that this matter was tried before the court below without a
jury. Accordingly, the factual findings of the court shall not be set aside unless
clearly erroneous. See CR 52.01. Further, due regard shall be given to the
opportunity of the trial court to judge the credibility of the witnesses. See Lewis,
Factual findings are not clearly erroneous if supported by substantial
evidence, which is evidence of substance and relevant consequence having the
fitness to induce conviction in the minds of reasonable men. Owens-Corning
Fiberglass Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998). Judgment of the
weight and credibility of the evidence is the sole province of the fact-finder. Lewis
v. Bledsoe Surface Mining Co., 798 S.W.2d 459 (Ky. 1990). 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, 59
S.W.3d 468, 473 (Ky. App. 2001), citing Church & Mullins Corp. v. Bethlehem
Minerals Co., 887 S.W.2d 321, 323 (Ky. 1992). We review this matter with these
standards in mind.
A prescriptive easement is a property right in one landowner, the
dominant tenement, representing a privilege to use the land of another, the servient
tenement, based upon a presumed grant arising from the adverse, uninterrupted,
and continued use of such land for a fifteen-year period. Cole v. Gilvin, 59 S.W.3d
468, 473 (Ky. App. 2001), citing Illinois Central R.R. Co. v. Roberts, 928 S.W.2d
822, 827 (Ky. App.1996).
As our Supreme Court stated in Columbia Gas Transmission
Corporation v. Consol of Kentucky, Inc., 15 S.W.3d 727, 730 (Ky. 2000), the law
of prescriptive easements is derived from the principles underlying adverse
possession of property interests generally. As with adverse possession of a fee
simple estate, a prescriptive easement can be acquired by actual, hostile, open and
notorious, exclusive, and continuous possession of the property for the statutory
period of 15 years. See KRS 413.010, Riley v. Jones, 174 S.W.2d 530, 531 (Ky.
1943), and Pickel v. Cornett, 147 S.W.2d 381, 382 (Ky. 1941).
In his brief to this Court, Lykins asserts that the evidence establishes
that he met the aforementioned standards to obtain a prescriptive easement, and
that the court’s finding of occasional and insufficient use was not supported by
substantial evidence. Having reviewed the record in detail, including the testimony
of the witnesses, the trial transcript, and the briefs of the parties, we cannot agree.
As noted, it was for the trial court, and solely the trial court, to judge
the weight and the credibility of the evidence in this matter. It was the trial court
who directly observed the witnesses in this matter and reviewed their testimony,
and it was the trial court that had the opportunity to judge the credibility of those
witnesses first-hand. It is our function to overturn those findings only when they
appear clearly erroneous, that is, not supported by substantial evidence. In this
case, we cannot so find.
Having reviewed the January 4, 2007, order of the trial court, we find
that it is clear that the court thoroughly considered the testimony and evidence
provided, and after doing so, found that Lykins failed to produce evidence
sufficient to support each of the elements set forth in Cole, supra. It was the trial
court’s finding that in rural areas, occasional crossings of another’s land can be
tolerated and accepted without granting unto the user any right of continuous use.
Further, and we believe correctly, the court interpreted Cole to stand
for the proposition that in order to gain a prescriptive easement, the affected
landowner must clearly be put on notice that the user intends to create for
themselves an ongoing right of use. It was for the trial court to determine if Lykins
met this burden; it determined that he did not. Having reviewed the evidence
presented by Lykins, we cannot find it to be so overwhelming as to warrant a
determination that the trial court committed clear error in finding for Tackett and
Accordingly, we hereby affirm the January 4, 2007, Order of the
Magoffin Circuit Court.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEES:
Gordon B. Long
John C. Collins