MUSE (TONY B.), ET AL. VS. BANKS (LEONARD), ET AL.
Annotate this Case
Download PDF
RENDERED: MARCH 11, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000101-MR
AND
NO. 2010-CA-000150-MR
TONY B. MUSE; AND LORETTA S. MUSE
v.
APPELLANTS/
CROSS-APPELLEES
APPEAL AND CROSS-APPEAL FROM LINCOLN CIRCUIT COURT
HONORABLE DAVID A. TAPP, JUDGE
ACTION NO. 08-CI-00538
LEONARD BANKS; VIVIAN BANKS;
AND JERRY DAVIDSON
APPELLEES/
CROSS-APPELLANTS
OPINION
REVERSING
** ** ** ** **
BEFORE: ACREE, DIXON AND KELLER, JUDGES.
DIXON, JUDGE: Appellants, Tony and Loretta Muse, appeal from a judgment of
the Lincoln Circuit Court finding that, pursuant to KRS 178.116, they did not have
the right to preclude Appellees, Leonard and Vivian Banks, and Jerry Davidson,
from utilizing an abandoned roadway located on Appellants’ property. Appellees
have also filed a cross-appeal from the trial court’s judgment. Because we find
that the trial court misconstrued the applicable statutory law, we reverse.
This action concerns a dispute over access to an old road that is
adjacent to and passes through properties owned by the parties herein. Lee Banks
Road consists of a short segment that is currently maintained by the Lincoln
County Road Department and an unpaved, much longer segment that is no longer
maintained by the county. A 1954 Lincoln County Road map depicts a countymaintained roadway that extended the entire length of property known as the
Keenas Hall farm. By 1963, the county-maintained portion of the road had
decreased and, by 1999, had again decreased to its current length. The disputed
portion of the road at issue herein is only that section which is no longer
maintained by the county.
In 2005, Appellants purchased a farm that was located directly north
and adjacent to the disputed roadway. At the time of the purchase, a gate was
located across the road at the point where county maintenance of such ended. In
May 2008, Appellants’ neighbor on the south side of the road, Keenas Hall, sold
his farm in several tracts at a public auction. Appellants and Appellees all
purchased tracts of the Keenas Hall property. Following Appellants’ purchase,
they owned the land on both the northern and southern sides of the road for a
substantial portion of its length. Shortly after the auction, Appellants erected a
solid fence across the road near where the prior gate was located.
-2-
In November 2008, Appellees filed an action in the Lincoln Circuit
Court seeking a determination of the rights of all the parties. Appellees alleged
that they were informed by both the auction officials as well as by Appellants
themselves that the disputed roadway would remain open to any purchasers of the
Keenas Hall tracts. Further, Appellees claimed that the old road was an easement
appurtenant to the other tracts.
A bench trial was held in April 2009, wherein the parties, along with
various county engineers and land surveyors, testified. In its subsequent judgment,
the trial court first ruled that the disputed road was neither a “county road” 1 nor a
“public road”2 as defined in KRS Chapter 178. Further, the trial court found that
even if the road was once a public road, the evidence clearly demonstrated that it
had been abandoned. Nevertheless, the trial court determined that because the
disputed portion was a “road formerly maintained by the county,” as defined in
KRS 178.116(1), and because it provided “necessary access” to Appellees’
property, Appellants were precluded from blocking or closing the road. In so
doing, the court stated:
[T]he statute defines “necessary access” as including “access to
any farm, tract of land, or dwelling, or to portions of such farm,
tract of land, or dwelling.” [KRS 178.116(5)]. Here, there can
be no dispute that old Lee Banks Road provides Plaintiffs
access to a portion of their farms or tracts of land. While the
1
“‘County Roads’ are public roads which have been accepted by the fiscal court of the county as
part of the county road system.” KRS 178.010.
2
“Any road, street, highway, or parcel of ground, dedicated and laid off as a public way and used
without restrictions on a continuous basis by the general public for fifteen (15) consecutive
years, shall conclusively be presumed to be a public road.” KRS 178.025.
-3-
Court cannot determine that such access is the only or exclusive
access possessed by the Plaintiff, KRS 178.116(5) contains no
such requirement.
Following the denial of the motion to alter, amend or vacate, Appellants appealed
to this Court. Appellees thereafter filed a cross-appeal.
The first issue presented in this Court concerns the statutory construction of
the phrase “necessary access.” Appellants argue that the trial court essentially
removed the term “necessary” from its interpretation of KRS 178.116(5).
Appellants point out that Appellees neither claimed nor proved any necessity in
using the disputed roadway.
KRS 178.116 provides:
(1) Any county road, or road formerly maintained by the county
or state, shall be deemed discontinued and possession shall
revert to the owner or owners of the tract of land to which it
originally belonged unless at least one (1) of the following
conditions exists:
(a) A public need is served by the road;
(b) The road provides a necessary access for a
private person;
(c) The road has been maintained and policed by
the county or state within a three (3) year period.
(2) If the only condition which exists is for a necessary access
for a private person, by a joint petition of all parties entitled to
such access, the road shall be deemed discontinued and
possession shall revert to the owner or owners of the tract of
land to which it originally belonged.
(3) If the only condition which exists is for a necessary access
for a private person, by joint petition of all parties entitled to
such access, the road shall be closed to public use but remain
-4-
open in accordance with its condition and use for the access of
the private parties involved.
....
(5) For the purposes of this chapter “necessary access” shall be
construed to include access to any farm, tract of land, or
dwelling, or to any portions of such farm, tract of land, or
dwelling.
By its own terms, KRS 178.116 is self-actuating in that it provides for the
discontinuance of a formerly maintained road without action by a county fiscal
court under certain circumstances. Under the statute, possession of the road way
reverts to the property owner in the absence of the conditions listed in subsections
(1)(a)-(c). As previously noted, the trial court herein found that the disputed
roadway provided a necessary access for Appellees, thus precluding its
discontinuance and reversion.
A fundamental principle of statutory interpretation is that the legislature
intends the act to be effective as an entirety and that each part is entitled to
significance and effect. See George v. Scent, 346 S.W.2d 784 (Ky. 1961). A
corresponding rule of construction is that a statute should be construed so that no
part of its provisions is rendered meaningless. Hardin County Fiscal Court v.
Hardin County Bd. Of Health, 899 S.W.2d 859, 862 (Ky. App. 1995); See also
Bob Hook Chevrolet Isuzu, Inc. v. Commonwealth Transportation Cabinet, 983
S.W.2d 488 (Ky. 1998).
To be sure, the language of KRS 178.116 is confusing at best. Even
the trial court admittedly struggled with its construction, expressing reservation
-5-
that such an “all-inclusive” interpretation of “necessary access” would essentially
prevent any old or abandoned roadway from being completely closed. However, it
is incumbent upon this Court to avoid an interpretation that would render any part
of the statute meaningless.
The American Heritage Dictionary of the English Language (New
College Edition 1981) defines “necessary” as “[n]eeded for the continuing
existence or functioning of something; essential; indispensable.” Contrary to this
definition, Appellees argue that “necessary access” means any access. We
disagree. Subsection (5) does not define “necessary access.” Rather this
subsection merely denotes types of land to which access shall include, i.e., farms,
tracts of land, or dwellings. Significantly, the subsection does not mandate that
“necessary access” shall include any access, as Appellees would have us interpret
this statute. Furthermore, Appellees’ interpretation of subsection (5) renders much
of the subsection superfluous. Were we to conclude that the legislature meant to
define “necessary access” as “any access,” obviously there would be no need to
further describe what is encompassed within the purview of the meaning of “any.”
Thus, we decline to accept Appellees’ interpretation of KRS 178.116(5), which
would vitiate the plain meaning of the statute.
Recently, in an unpublished decision, the United States District Court
for the Eastern District of Kentucky rejected the defendants’ claim of “necessary
access” to their property under KRS 178.116(5), commenting that “[a]ccess is not
necessary merely because it is the preferred or easier route compared to another
-6-
way.” Scott v. Garrard County Fiscal Court, 2010WL1038211 (E.D. Ky. 2010).
While not precedent and certainly not binding on this Court, we agree with the
federal court. The legislature intentionally and with a specific purpose included
the term “necessary” several times within KRS 178.116. We are compelled to
accord meaning to the term and construe the statute in such a manner as to render it
effective in its entirety. See George, 346 S.W.2d 784.
Appellees did not argue, and the trial court did not find that the
disputed roadway was the only or even best access to their property. In fact, our
review of the video shows that portions of the roadway are eroded, overgrown and
certainly not passable by most farm equipment, much less a normal vehicle.
Clearly, no one has used the roadway as a means of ingress or egress for a very
long time. As such, we must conclude that the trial court erroneously ruled that the
disputed roadway provided “necessary access” under KRS 178.116.
Next, Appellees cite to Blankenship v. Acton, 159 S.W.3d 330 (Ky.
App. 2004), in arguing in their cross-appeal that Appellants failed to prove
ownership of the old road. In other words, Appellees contend that even if the trial
court had ruled that the old road did not provide necessary access, ownership of
such may not necessarily have reverted to Appellants’ property.
First, it appears as though the trial court, in light of its finding that the
roadway provided “necessary access” to Appellees’ property, did not fully address
this issue because it merely stated that “it is mere supposition that the roadway
property would revert to Muse since he currently possesses title to both adjoining
-7-
tracts.” Nevertheless, we are of the opinion that Blankenship is distinguishable
from the instant case, in that Appellants herein own both sides of the disputed road.
Thus, unlike the facts in Blankenship, there are no “across the road” competing
claims to ownership of the roadway. Clearly, whether the road was initially part of
the tract to its north or the tract to its south is irrelevant because Appellants own
both tracts of land. Appellees cannot reasonably argue that the disputed road
would revert to their tracts since they do not own the adjoining land.
For the reasons set forth herein, we reverse the decision of the Lincoln
Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANTS/
CROSS-APPELLEES:
BRIEF FOR APPELLEES/
CROSS-APPELLANTS:
John E. Hackley
Stanford, Kentucky
Robert R. Baker
Stanford, Kentucky
-8-
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.
