BECRAFT (HARLAN RANDALL) VS. ELLINGTON (WILLIAM DAVID), ET AL.
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RENDERED: JULY 1, 2016; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2014-CA-001214-MR HARLAN RANDALL BECRAFT v. APPELLANT APPEAL FROM BATH CIRCUIT COURT HONORABLE WILLIAM EVANS LANE, JUDGE ACTION NO. 10-CI-90020 WILLIAM DAVID ELLINGTON; JANE ELLINGTON, HIS WIFE; HENRY LEROY ANDERSON; AND BONNIE B. ANDERSON APPELLEES OPINION REVERSING AND REMANDING ** ** ** ** ** BEFORE: D. LAMBERT, J. LAMBERT, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Harlan Randall Becraft brings this appeal from a July 10, 2014, Findings of Fact, Conclusions of Law and Judgment of the Bath Circuit Court concluding that a county road, public road and/or right-of-way easement existed upon his real property. We reverse and remand. Harlan Randall Becraft, Henry Leroy Anderson, and Bonnie B. Anderson own in fee simple a parcel of real property located in Bath County (Becraft property). To the southwest of the Becraft property, William David Ellington and Jane Ellington own real property that directly abuts the Becraft property. A dispute arose between the parties concerning whether a passway exists over the Becraft property to the Ellington property and if so, whether the passway qualifies as a county road, public road, and/or right-of-way easement. The Ellingtons filed a Complaint and Petition for Declaration of Rights in the Bath Circuit Court on February 3, 2010. The Ellingtons named, inter alios, Becraft and the Andersons as defendants. The Ellingtons alleged that a roadway known as Smokey Hollow Road transversed over the Becraft property in a southwest direction and unto their property: A county road, which has been known as Smokey Hollow Road, runs from Oakley-Pebble Road in Bath County, Kentucky[,] in a westwardly direction, first crossing the Bailey Property and then crossing the Becraft/Anderson Property and reaching the Ellington Property[.] Complaint and Petition for Declaration of Rights at 4. The Ellingtons claimed the right to use Smokey Hollow Road over the Becraft property to reach their real property as such road constituted a county road, a public road, and/or a right-ofway easement. The Andersons and Becraft filed answers and denied that a county road, public road, or right-of-way easement was located across their property. In -2- fact, the Andersons and Becraft alleged that only a private passway transversed the northeastern part of their property and that the southwestern part of their property is heavily wooded and nonaccessible by vehicle. The Andersons and Becraft maintained that no passway physically existed upon their property that reached the Ellingtons’ property.1 The matter was heard by the court without a jury pursuant to Kentucky Rules of Civil Procedure (CR) 52.01. After hearing the evidence, the circuit court rendered Findings of Fact, Conclusions of Law and Judgment. The court concluded that a passway named Smokey Hollow Road transversed thru the Becraft property in a southwestern direction onto the Ellington property and that such road constituted a county road, a public road, and a right-of-way easement acquired by prescription. This appeal follows.2 To begin, we review the circuit court’s findings of fact under the clearly erroneous standard. CR 52.01. Thereunder, a finding of fact is not clearly erroneous if supported by substantial evidence of a probative value. See Phelps v. Brown, 295 S.W.2d 804 (Ky. 1956). However, issues of law are reviewed de novo. Gosney v. Glenn, 163 S.W.3d 894 (Ky. App. 2005). Our review proceeds accordingly. COUNTY ROAD 1 At trial, there was evidence that William David Ellington and Jane Ellington’s property would not be landlocked if no passway existed over Harlan Randall Becraft’s property to the Ellington’s property. 2 Leroy Anderson and Bonnie B. Anderson did not file a brief in this appeal. -3- Becraft initially contends that the circuit court erred by declaring the alleged passway was a county road known as Sleepy Hollow Road.3 For the following reasons, we agree. The law is well-settled that a county road may be only established by formal act of the fiscal court. Sarver v. Allen Cnty., By and Through its Fiscal Court, 582 S.W.2d 40 (Ky. 1979); Porter v. Johnson Cnty. Judge/Executive, 357 S.W.3d 500 (Ky. App. 2010); Blankenship v. Acton, 159 S.W.3d 330 (Ky. App. 2004). Kentucky Revised Statutes 178.010(1)(b) plainly defines a county road as a public road that has been “formally accepted by the fiscal court of the county as a part of the county road system.” Our Court has specifically held that the adoption of “a given road as a county road . . . must be evidenced by proof consisting of an official order, resolution or ordinance of the fiscal court that appears of record.” Cary v. Pulaski Cnty. Fiscal Court, 420 S.W.3d 500, 507-08 (Ky. App. 2013); see also Illinois Cent. R. Co. v. Hopkins County, 369 S.W.2d 116 (Ky. 1963). In this case, it is undisputed that no official order, resolution, or ordinance of the Bath Fiscal Court was entered into evidence accepting any part of Sleepy Hollow Road and/or the alleged passway over the Becraft property into the county road system. While the state road map was entered into evidence, there was no final order or ordinance of the Bath Fiscal Court evidencing the adoption of said road map. In view of the utter lack of evidence as to a formal act by the Bath 3 The parties have conceded that a small portion of Sleepy Hollow Road is currently maintained by the county, but this portion does not enter upon the Becraft property. We will, therefore, confine our analysis to whether the alleged passway over the Becraft property is a county road, a public road, or a right-of-way easement. -4- Fiscal Court, we conclude that the alleged passway over the Becraft property is not a county road as a matter of law. See Cary, 420 S.W.3d 500. PUBLIC ROAD Becraft next asserts the circuit court erred by deciding that the alleged passway was a public road. In so deciding, the circuit court concluded: The weight of the evidence introduced at trial clearly indicates that the road involved in this action was sufficiently used by the public over a long period of time to cause it to become a public passway. The road involved in this action has been marked and identified as running from and connecting Oakley-Pebble Road through the property now owned by the Bailey family, through the property owned by the Becraft/Anderson Defendants and through the property now owned by the Ellingtons to the White Oak Turnpike, now known as White Oak Road, since at least 1884. Smokey Hollow Road is still shown on maps sold to the public showing the roads in Bath County as well. David Ellington testified about use of the road by the public during the 1950s when his family first purchased the property. James Reed, a witness not related to any of the interested parties, testified about the use of the road by the public during the 1960s and the 1970s. Mr. Reed discussed his and his father’s use of the road to get to and from the Crain farm and to drive cattle on and off the property. He discussed the use of the road by specific members of the public, including but not limited to Dayton (Doc) Denton, Franklin and Addie Vince and Holman Stewart, to get to residences in which they lived along the road in question. Officials from the County, such as Tom Warren from the Bath County Road Department, also testified about the use of Smokey Hollow Road through the years by buses from the Bath County School System, well into the property now owned by the Becraft/Anderson Defendants. -5- Although Mr. Becraft locked the gate across the road once he purchased the property in 2004, fifteen (15) years did not pass before this suit was filed in 2010 so as to allow a finding that Mr. Becraft has sufficiently ended the public use of the road in question for the required fifteen (15) year statutory period. Findings of Fact, Conclusions of Law and Judgment at 8-9. A road or passway may be informally established as a public road through dedication by prescription or dedication by estoppel.4 A public road is said to be dedicated by prescription when (1) the public utilized the road for fifteen years, and (2) the government exercised control and maintenance upon the road also for fifteen years. See Watson v. Crittenden Cnty. Fiscal Court, 771 S.W.2d 47 (Ky. App. 1989); Cary, 420 S.W.3d 500. And, the public use must be continuous, actual, open, and hostile. A public road is dedicated by estoppel when the public continuously and substantially uses the road for a long duration so as to evidence the landowner’s intent to dedicate such road: It is settled in this state that a general and long-continued use of a passway by the public as a right will create the right to continue the use and the owner of the land traversed by the passway who allows the public to use it as a highway for a long period of years under a claim of right will be estopped from denying a dedication to the public. Long-continued user [sic] by the public will constitute an implied acceptance of the dedication. 4 As no formal act of dedication is alleged, we are not concerned with dedication by a statute. Watson v. Crittenden County Fiscal Court, 771 S.W.2d 47 (Ky. App. 1989). -6- Freeman v. Dugger, 286 S.W.2d 894, 896 (Ky. App. 1956) (quoting Gardner v. Hope, 248 Ky. 270, 58 S.W.2d 353, 354 (Ky. 1933). As for dedication by prescription, there was no evidence introduced that the alleged passway running through Becraft’s property was controlled and maintained by Bath County for a period of fifteen years. The Ellingtons did introduce proof that Bath County created a turnaround for a school bus and added gravel to a portion of the passway some sixteen years ago. But, the Ellingtons failed to demonstrate that Bath County continuously for a period of fifteen years maintained the alleged passway over the Becraft property. In the absence of such evidence, we conclude the alleged passway upon the Becraft property was not a public road acquired through prescription as a matter of law. See Cary, 420 S.W.3d 500. As for dedication by estoppel, the Ellingtons introduced evidence that the public utilized the passway over the Becraft property in the 1950s, 1960s, and 1970s. Some of this use was permissive and was by adjoining tenants or landowners. William Ellington testified to using the passway over the Becraft property starting in 1985 for two or three times a year to access his property. It is, however, uncontradicted that a gate was erected and locked by Becraft to prevent access to his property starting in 2004. Moreover, the evidence overwhelmingly demonstrates that no passway is physically present over the southwestern portion of the Becraft property that is capable of providing vehicular access to the Ellingtons’ property. -7- To create a public road through dedication by estoppel, “the facts relied upon must be such as to clearly indicate a purpose [or intent] on the part of the owner to abandon his or her personal dominion over the property and to devote it to a definite public use.” 23 Am. Jur. 2d Dedication § 31 (2016). In this case, we do not believe the facts indicate a clear intent by Becraft or his predecessors in title to abandon their interest in the alleged passway and dedicate it to public use. In sum, we conclude that the alleged passway over the Becraft property was not a public road. RIGHT-OF-WAY EASEMENT Becraft lastly maintains that the circuit court erred by concluding that the Ellingtons possessed a right-of-way easement obtained through prescription over the Becraft property. For the following reasons, we believe that a prescriptive easement existed but that it was abandoned. From a review of the evidence and relevant case law, we agree with the circuit court that a prescriptive easement existed over the Becraft property. There was sufficient evidence that the Ellingtons and the Ellingtons’ predecessors in title utilized the passway running through the Becraft property in an actual, open, notorious, and hostile manner for a period of fifteen years. Riley v. Jones, 295 Ky. 389, 174 S.W.2d 530 (Ky. 1943). With this right-of-way easement, the Becraft property was the servient tenement, and the Ellington property was the dominant tenement. -8- A right-of-way easement obtained by prescription may be extinguished through abandonment by the dominant tenement. As to property rights, abandonment has been defined as “the relinquishment of a right or of property without the intention of reclaiming it or reassuming its ownership or enjoyment.” Illinois Center Railroad Co. v. Roberts, 928 S.W.2d 822, 826 (Ky. App. 1960) (quoting Ellis v. Brown, 177 F.2d 677, 678 (6th Cir. 1949)). The nonuse of a prescriptive easement for less than fifteen years is not alone sufficient to establish abandonment. Sarver, 582 S.W.2d 40. Yet, the nonuse of a prescriptive easement coupled with other acts showing an intent to abandon is sufficient to demonstrate abandonment. City of Harrodsburg v. Cunningham, 299 Ky. 193, 184 S.W.2d 357 (Ky. 1944). In this case, the intent of the Ellingtons to abandon the right-of-way easement is evidenced by not only nonuse of the right-of-way for some six years but also by the physical nonexistence of the right-of-way over the southwestern portion of the Becraft property. The overwhelming evidence demonstrated that the southwestern portion of the Becraft property was impassable by vehicular traffic. In fact, no physical passway over the Becraft property existed upon which the Ellingtons could access their property. Moreover, the Ellingtons had not utilized the alleged passway since at least 2004 because of a locked gate. And, there was evidence the Ellingtons had an alternate route to access their property and presumably utilized this route for some six years before filing the instant action. Taking the evidence together to the extent that a right-of-way easement may have -9- existed, we conclude that the Ellingtons abandoned their right-of-way easement on the Becraft property, thus extinguishing same. See Illinois Ctr. R.R. Co., 928 S.W.2d 822. CONCLUSION In sum, we are of the opinion that the alleged passway over the Becraft property was not a county road or public road. We do conclude that a prescriptive right-of-way existed over the Becraft property at one time but that such right-of-way easement was abandoned by the Ellingtons, as a matter of law. For the foregoing reasons, the Findings of Fact, Conclusions of Law and Judgment of the Bath Circuit Court is reversed and remanded for proceedings consistent with this opinion. J. LAMBERT, JUDGE, CONCURS. D. LAMBERT, JUDGE, DISSENTS AND FILES SEPARATE OPINION. D. LAMBERT, JUDGE, DISSENTING: I respectfully dissent. I would hold that the Appellees established a prescriptive right-of-way and that same was not abandoned, thus I would affirm. -10- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES: Leah Hawkins Mt. Sterling, Kentucky Stephen E. Neal Mt. Sterling, Kentucky -11-
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