Opinion
NO. 2016-CA-000727-MR
01-19-2018
HAZEL VERLOIS BOWLING, CAROLYN SUE CALDWELL AND LAWRENCE SMITH, AS CO-EXECUTORS OF THE ESTATE OF DAISY SMITH, DECEASED APPELLANTS v. CHARLES E. SMITH APPELLEE
BRIEF FOR APPELLANTS: John T. Aubrey Manchester, Kentucky BRIEF FOR APPELLEE: R.W. Dyche, III London, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE DANNY EVANS, JUDGE
ACTION NO. 14-CI-00780 OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: ACREE, DIXON AND STUMBO, JUDGES. ACREE, JUDGE: Appellants, Hazel Bowling, Carolyn Caldwell, and Lawrence Smith, as Co-Executors of the Estate of Daisy Smith, appeal the Laurel Circuit Court's May 3, 2016 order reversing its original findings of fact, conclusions of law, and judgment entered February 8, 2016, following a bench trial and, instead, finding Appellants are not entitled to an easement by prescription or implication across land owned by Appellee Charles Smith. For the reasons stated below, we reverse and remand for additional proceedings.
Judge Janet Stumbo concurred in this opinion prior to retiring from the Kentucky Court of Appeals effective December 31, 2017. Release of this opinion was delayed by administrative handling.
In various briefs, Appellant Lawrence Smith's given name is interchangeably spelled Lawrence and Laurence. In this opinion, we utilize the spelling stated in the Notice of Appeal.
FACTS AND PROCEDURE
At the time of her death, Daisy Smith owned and was in possession of a tract of land in Laurel County, Kentucky (Appellants' tract). Charles owns property contiguous to Appellants' tract. Appellants' tract and Charles' tract originated from a common grantor.
Daisy's Last Will and Testament directed that Appellants be appointed co-executors of her estate.
Henry and Martha Brummett originally owned both tracts. In 1945, Henry split the property between his two children, Flora Smith and Jackson Brummett. Jackson sold his property to Robert and Daisy Smith in 1956. Flora conveyed her property to her three children, one of whom was Susan Smith, Charles' mother. Charles purchased his tract from Susan in 1997.
In November 2014, Appellants filed this action for a declaration to recognize an easement across Charles' land. The complaint alleged it is necessary to travel a roadway that crosses Charles' property to access Appellants' tract. According to the complaint, the roadway and easement had been used for ingress and egress to Appellants' land for more than fifteen years. Appellants also claimed they and their predecessors in title acquired an easement over and upon the roadway under multiple legal theories including by necessity, implication, quasi-easement, prescription, and estoppel.
The circuit court conducted a bench trial on December 30, 2015. The Appellants and their four witnesses - Leroy Smith, Walter Bowling, Melissa Upchurch, and Joseph Upchurch - all testified that Appellants' tract had been used by Appellants' family for agricultural purposes for the last sixty or so years, beginning when Daisy and Robert purchased the land from Henry Brummett in 1956 and until Charles blocked access in 2013. The Appellants and others used the property to grow crops, tend tobacco, cut hay, graze horses and cattle, hunt, camp, and cut firewood. The property is fenced. Appellants and their witnesses reiterated that farming was done all year long, "year in and year out."
Charles testified that he lived on what is now his tract as a child and until 1985 when he moved away. Twelve years later, in 1997, he purchased the tract and moved there in 2000 or 2001. Charles testified that, although the Appellants had used their land in the past for farming purposes, they had not done so in several years and, to Charles' knowledge, it had been some seven or eight years since Appellants or their family members had been to their tract.
Appellants testified that no barriers prevented them from accessing their tract until Charles erected a gate across the path and posted a no-trespassing sign sometime in 2012 or 2013. They testified they had always utilized a gravel roadway or lane that crossed Charles' land as ingress and egress to their tract; they never used any other roadway or means of access.
Charles testified that he thought, but was not certain, that Appellants could access their property from Raccoon Mountain Road, what he believed to be a county road, at the other side (the back end) of Appellants' tract. Charles clarified that he had not been on Raccoon Mountain Road, but it appeared from an aerial photograph or map that it ended near Appellants' land.
Appellants presented evidence to the contrary, with witnesses repeatedly stating there was no access to the property from that county road. Specifically, Appellant Hazel Bowling responded to questioning on this point:
Counsel: There's been talk in discovery depositions about a county road accessing your property from a different area. Explain about accessing your property from that road. Can you do it?Similarly, Appellant Carolyn Sue Caldwell testified:
Hazel: Well, I don't know really if you can do it or not, myself, because we've never done it. We've always used that other road [across Charles' tract]. We've never used nowhere else except that way.
Counsel: You ever use the other - this road that [Charles] says is a county road that comes to the other
section of your property; was that ever used to get to this property?Appellant Lawrence Smith gave similar testimony, as follows:
Carolyn Sue: No. I didn't even know they existed until a couple of years ago, myself.
Counsel: Mr. Smith testified in his deposition that there was a county road that came to your all's property at another location. Did you ever use that access?Walter Bowling and Joseph Upchurch both testified they were unaware of any other way to access the Appellants' land except by crossing Charles' property. Leroy Smith also testified he had never accessed the Appellants' tract by any means except over Charles' land, and to do so would require a bulldozer or helicopter.
Lawrence: No. There's no county road to it. There's a road built out [Charles'] uh, grandparents lived on up there on the property we own and they built a road up through there ya know.
Counsel: This has been the way - the road that crosses Charles Smith's property is the only way you all ever used to get in and out of it?
Lawrence: It's the only way you can get in and out [of Appellants' tract].
Leroy further explained that, about seven years earlier, Charles erected a gate in a slightly different location across the path to keep people from driving four-wheelers on his land. According to Leroy, Charles asked Appellants and Leroy for permission to erect the gate and gave Leroy a key to the gate.
Charles also testified that there were two other means of access to Appellants' tract. He placed into evidence three aerial photographs of the area. One photograph - Defendant's Exhibit 9 - shows that Raccoon Mountain Road ends on a tract owned by Thelma B. Bruner; like Charles' property, Bruner's tract also abuts Appellants' land but on its opposite side. Another aerial photograph - Defendant's Exhibit 8 - indicates Witt Road runs parallel to Appellants' tract but to reach Appellants' tract from Witt Road would require a person to cross land owned by Warren and Tammy Reuter. Neither Thelma Bruner nor Warren and Tammy Reuter are parties to this case.
Throughout the trial, these aerial photographs were referred to as "maps."
After hearing all the evidence, the circuit court entered findings of fact, conclusions of law, and a judgment finding Appellants were entitled to an easement by prescription, but also by implication because they have no other access to their property except over Charles' land. This original judgment noted that Charles "testified that he thought, but was not certain, that [Appellants] could access their property from a county road at the other end of their property, however [Appellants] testified that there was no access from that county road." (R. 46).
Charles moved to alter, amend, or vacate the judgment under CR 59.05, arguing in effect that the circuit court's decision was not supported by substantial evidence. The parties were heard in open court on the motion, after which the circuit court took the case under advisement to allow the court time to watch the entirety of the trial.
Kentucky Rules of Civil Procedure.
Charles' current counsel did not conduct the trial, but succeeded as Charles' original counsel following the latter's appointment as Leslie Circuit Judge; that appointment, and the substitution of counsel, occurred after the trial and before Charles filed his CR 59 motion.
We also note, in passing, that the judge at the time of trial was the Honorable Thomas Jensen. Soon thereafter, Judge Jensen retired. His successor, the Honorable Danny L. Evans, presided during the hearing and granted Charles' CR 59 motion.
Thereafter, the circuit court granted Charles' motion, reversing its previous position and ruling that Appellants "failed to meet the requirements of the aforementioned easements [by either implication or prescription]." (R. 63). More specifically, the court found Appellants were not entitled to an easement by prescription because the evidence established Appellants' use of the roadway across Charles' property was accomplished with the implied permission of Charles or his predecessor-in-title. It also found Appellants were not entitled to a quasi-easement because there is no evidence that the roadway was in existence or useD prior to the split of the property by Henry Brummett in 1945. Finally, the court denied Appellants' claim to an easement by necessity. It found persuasive Charles' testimony that there are three ways to access Appellants' property: the passway in question claimed by Appellants as the easement, and two county roads. The court also cited the testimony of Appellant Carolyn Sue Caldwell who the court perceived as "testif[ying] that there was a county road that provided access to the property . . . ." (R. 68).
The amended judgment was entered May 3, 2016. This appeal followed.
STANDARD OF REVIEW
If an appellate court is aware of a reason to affirm the lower court's decision, it must do so. Mark D. Dean, P.S.C. v. Commonwealth Bank & Tr. Co., 434 S.W.3d 489, 496 (Ky. 2014). "[U]nder CR 59.05, a trial court's decision to grant . . . a motion to alter, amend, or vacate its judgment lies within the discretion of the [circuit] court." Emberton v. GMRI, Inc., 299 S.W.3d 565, 579 (Ky. 2009). And while the circuit court has "unlimited power to amend and alter its own judgments[,]" Gullion v. Gullion, 163 S.W.3d 888, 891-92 (Ky. 2005) (emphasis added), its authority to do so is limited by, and this Court reviews the circuit court's decision under, the abuse of discretion standard. Emberton, 299 S.W.3d at 579.
Furthermore, because this is an appeal following a bench trial, the circuit court's "[f]indings of fact [even as amended], shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the [circuit] court to judge the credibility of the witnesses." Barber v. Bradley, 505 S.W.3d 749, 754 (Ky. 2016) (quoting CR 52.01). A circuit court's factual findings are clearly erroneous if they are unsupported by substantial evidence. Carroll v. Meredith, 59 S.W.3d 484, 489 (Ky. App. 2001). 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." Gosney v. Glen, 163 S.W.3d 894, 898 (Ky. App. 2005). The circuit court's legal conclusions are reviewed de novo. Barber, 505 S.W.3d at 754.
ANALYSIS
Under these standards of review, we must decide first whether substantial evidence supported the circuit court's original factfinding; Charles claimed in his CR 59 motion that it did not. If Charles is correct, Appellants failed to satisfy their burden of proof, the original factfinding was erroneous, and granting the post-trial motion could not have been an abuse of discretion. Further analysis by this reviewing court, therefore, would be unnecessary.
However, if the original factfinding was supported by substantial evidence, then the Appellants satisfied their burden of proof. We would then have to move to the next step in our analysis - determining whether there was substantial evidence to support the opposite finding of fact. Reweighing the evidence is the prerogative of the circuit court sitting as factfinder provided, of course, "there is substantial evidence on both sides of a question of fact" because, under CR 52.02, the court "may believe the evidence" presented by either party contesting that question. Security Benifit Ass'n of Topeka, Kan., v. Payne, 300 S.W. 861, 863 (Ky. 1927). If, however, there is no competent evidence of substance upon which to base amended factfinding that contradicts the substantial evidence that supported the original factfinding, then the amended factfinding is clearly erroneous. Upon this analytical framework, we review the Appellants' arguments.
"Generally, an easement may be created by express written grant, implication, prescription or estoppel." Gosney, 163 S.W.3d at 899 (citation omitted). Although Appellants assert that the facts of this case support several of these judicial doctrines, our focus is on Appellants' claim of an easement by necessity because that claim hinges on a single question of fact, the single question of fact upon which the circuit court reversed itself - i.e., whether the claimed easement is the only means of access to Appellants' property.
As with all easements, claims of easement by necessity are not favored under the law because they "deprive the owner of the use of his own property or burden it with a servitude[.]" Ben Snyder, Inc. v. Phoenix Amusement Co., 218 S.W.2d 62, 63 (Ky. 1949). The party claiming the right to an easement does not have an easy task. Cary v. Pulaski Cnty. Fiscal Court, 420 S.W.3d 500, 509 (Ky. App. 2013). "Passways, being, like all servitudes, limitations of, or deductions from, another person's ownership and dominion over his land, should be clearly established by the proof before the landowner should thus be deprived of his property." Godman v. Jones, 202 S.W. 662, 665 (Ky. 1918).
Carroll v. Meredith, 59 S.W.3d 484 (Ky. App. 2001), states the requirements for an easement of necessity:
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. at 491 (footnotes and citations omitted). In this case, no issue exists regarding the first two prerequisites. The debate centers on the third - necessity.
"Necessity of access is the primary factor for the existence of an easement by necessity. Indeed, a requirement of 'strict' necessity has traditionally applied to easements or ways of necessity." Gosney, 163 S.W.3d at 900 (citation omitted). "Strict necessity has generally been defined as absolute necessity such as where property is landlocked or otherwise inaccessible." Meredith, 59 S.W.3d at 491. A party must demonstrate there is "no other means of access[.]" Id. at 492.
Kentucky courts generally decline to find an easement by necessity if the claimant has another means of access. Gosney, 163 S.W.3d at 900. "However, this Court has previously rejected the proposition that a party fails to show necessity where a possibility exists that they could obtain a means of access across another adjacent owner's property." Carroll v. Carroll, 355 S.W.3d 463, 467 (Ky. App. 2011).
The original judgment in the case before us includes the finding "that the [Appellants] have no other access to their property except over the lands" owned by Charles; the corresponding legal ruling was that Appellants established entitlement to an easement by implication, i.e., an easement by necessity. (Judgment, February 8, 2016; R. 47). That ruling followed, and was based upon, the circuit court's summary of Appellants' testimony that they "never used any other roadway" to access their property and "there was no access from that county road" Charles claimed serviced Appellants' property. (Id.; R. 46). Earlier in this opinion, we set forth the details of that testimony and need not yet repeat it. It is sufficient for now to say that substantial evidence supported the circuit court's original finding of fact that apart from the passway in question, there is "no other means of access" to Appellants' property. See Meredith, 59 S.W.3d at 492.
Upon Charles' CR 59 motion and after hearing the parties, the circuit court reviewed the video transcript of the trial and summarized the evidence in its May 3, 2016 amended judgment. (R. 62). This time the court concluded that there was at least one other means of accessing the Appellants' property. The court noted that Charles testified that there were at least two other means of access to Appellants' land - Raccoon Mountain Road and Witt Road. Notwithstanding the circuit court's efforts in applying its limited resources to view the trial and summarize the evidence, we are compelled to agree with Appellants that substantial evidence does not support the circuit court's finding; therefore, we must conclude that finding to be clearly erroneous. Patmon v. Hobbs, 280 S.W.3d 589, 593 (Ky. App. 2009) ("At a bench trial, the factual findings of the trial court shall not be set aside unless they are clearly erroneous; that is, not supported by substantial evidence." (citation omitted)).
We tread cautiously because, generally speaking, witness testimony offered at trial constitutes substantial evidence in support of a circuit court's factual findings. See, e.g., Moore v. Asente, 110 S.W.3d 336, 355 (Ky. 2003) ("[W]itnesses' testimony constituted substantial evidence to support the trial court's findings."). And it is a well-known tenet of our jurisprudence that the circuit court, when operating as the fact finder, can believe one witness's testimony to the exclusion of others. Id. However, for witness testimony to be substantial it must be of "relevant consequence having the fitness to induce conviction in the minds of reasonable men." Smyzer v. B.F. Goodrich Chemical Co., 474 S.W.2d 367, 369 (Ky. 1971). Charles' testimony fails to meet this standard.
Charles testified that "there's two or three different ways they could go up in there," (VR No. 1: 12/30/15; 10:17:15), but ultimately identified only Witt Road and Raccoon Mountain Road, a road he believed to be a county road. We have carefully examined the evidence regarding these supposed access routes but find no substantial evidence to support the circuit court's finding that "there is at least one, possibly two, alternate means of accessing the [Appellants'] land." (R. 68). We will consider the evidence regarding Witt Road first.
A copy of an aerial photograph, Defendant's Exhibit 8, is incorporated in this opinion below. The exhibit reveals the location of Witt Road (shown as a narrow red line and circled in white at lower right) in relation to Charles' tract (outlined in red) and Appellants' tract (outlined in blue). While Witt Road ends on, and allows access to, a different and non-contiguous property owned by Appellants, that tract is not the property at issue in this case. Defendant's Exhibit 8 clearly demonstrates that the Appellants' subject property is separated from Witt Road by land owned by Warren and Tammy Rueter. Charles' speculation that Witt Road provides access to the subject property cannot be correct; to make it so would require the construction of an extension to Witt Road across the property owned by the Rueters, and they are not parties to this action.
Red, blue, and white outlining appearing on the copies of aerial photographs in this opinion were added by this Court.
Image materials not available for display.
The top center of Defendant's Exhibit 8 also shows the very end of Raccoon Mountain Road. That road is more clearly depicted along the top of Defendant's Exhibit 9. A copy of that exhibit is incorporated in this opinion below. Raccoon Mountain Road is plainly identified on the exhibit. The road clearly enters upon and terminates within the boundary of property owned by Thelma B. Bruner. The end of the road and the boundary of Appellants' property is separated by woodlands. Examining Charles' testimony regarding Raccoon Mountain Road shows that he was merely speculating that the road provides access to the Appellants' property.
Image materials not available for display.
On direct examination, Charles identified Raccoon Mountain Road as a county road and marked the road on Defendant's Exhibit 9 with a red pen. (VR No. 1: 12/30/15; 10:17:15). The red line does not extend to the boundary of Appellants' property. On cross-examination, Charles was asked if Raccoon Mountain Road reached as far as the Appellants' property to which he responded: "Not been up that county road, but I'd say it does 'cause there's a tower right there by it." (VR No. 1: 12/30/15; 10:24:48). When asked again if he knew, as a matter of fact, that Raccoon Mountain Road provided access to the Appellants' property, Charles again referred to Defendant's Exhibit 9 and admitted, "I don't know but it looks like it ends right there at their property line." (VR No. 1: 12/30/15; 10:25:10). We do not doubt that, to Charles, it "looks like" the road provides access; however, to the objective observer, that is not a reasonable description of what the exhibit depicts. The demonstrative evidence uniformly and universally depicts a road that terminates before it reaches the Appellants' property.
On re-direct, Charles identified this tower as a cell tower. (VR No. 1: 12/30/15; 10:25:42). We are unsure of the inference intended by Charles' reference to the cell tower and would only be speculating that Charles was suggesting Raccoon Mountain Road provided access to a cell tower near the Appellants' property.
Charles argues, however, that Carolyn Sue testified there was a county road (referring to Raccoon Mountain Road) that provided access to Appellants' property. The circuit court accepted that argument and stated in its amended judgment that Appellant, "Carolyn Sue Caldwell, testified that there was a county road that provided access to the property, but that she never used it and was unaware of its presence until a 'couple of years ago.'" (R. 68). We are not persuaded by Charles' argument and cannot confirm the circuit court's characterization of Caldwell's testimony because it is contradicted by the record.
We carefully and repeatedly reviewed Caldwell's testimony. When asked if Raccoon Mountain Road was ever used to access Appellants' land, Caldwell said, "No." She went on to state that she did not know that Raccoon Mountain Road even existed until a "couple of years ago." Caldwell's statement that Raccoon Mountain Road was never used to access the property cannot be the basis of an inference that the road, in fact, did not provide such access; however, it is no less improper to infer that the road does provide access based on her simple admission that she knows of the road's existence. Neither her testimony nor any reasonable inferences to be drawn from that testimony supports the circuit court's finding that alternate access to the Appellants' property exists.
For the same reason, we must reject as clearly erroneous the circuit court's conclusion elsewhere in the May 3, 2016 judgment that "[t]he [Appellants] became aware of an alternate entry point, via county roads, 'a couple of years ago,' . . ." (R. 35). This statement was obviously based on Caldwell's testimony which is quoted therein.
Charles also argues that Lawrence Smith acknowledged the existence of alternate access to Appellants' tract by way of Raccoon Mountain Road. (Appellee's brief, p. 6). Again, this is refuted by the record. On direct examination, and as set out in detail above, Lawrence testified that the passway across Charles' property was "the only way you can get in and out." (VR No. 1: 12/30/15; 9:32:30). Lawrence was asked directly whether there was a county road, i.e. Raccoon Mountain Road, that "came to" Appellants' land. Lawrence responded, "No. There's no county road to it." (VR No. 1: 12/30/15; 9:32:08). His testimony could not be more unequivocal.
The May 3, 2016 amended judgment makes no specific mention of Lawrence's testimony.
The order granting Charles' CR 59.05 motion found that Appellants "failed to show that the passway is the only means of accessing their property" because evidence showed "at least one, possibly two, alternate means" of access. This factual finding is not supported by substantial evidence and is, therefore, clearly erroneous. The roads Charles suggested as alternative means of accessing Appellants' property do not provide such access, and cannot provide such access without extending Raccoon Mountain Road across Thelma Bruner's property, or extending Witt Road across the Rueter's property. See Carroll, 355 S.W.3d at 467 ("[T]his Court has previously rejected the proposition that a party fails to show necessity where a possibility exists that they could obtain a means of access across another adjacent owner's property."); Lowe v. Kemp, 2014-CA-000691-MR, 2015 WL 1543697, at *7 (Ky. App. Apr. 3, 2015).
We do not cite Lowe for its precedential value, but to demonstrate conformity among this Court's opinions. --------
Determining Charles' credibility as a witness is a responsibility assigned strictly to the circuit court. Barber, 505 S.W.3d at 754. However, it is not Charles' credibility, but the speculative nature of his testimony, that lacks the substance to overcome the demonstrative photographic evidence Charles himself provided. No testimony offered before the circuit court, including Charles' testimony, constitutes evidence of relative consequence to induce conviction in the minds of reasonable people that another means of access to the Appellants' property exists.
CONCLUSION
The May 3, 2016 order of the Laurel Circuit Court is REVERSED to the extent the circuit court denied Appellants' claim to an easement by necessity and this case is hereby REMANDED. The circuit court is instructed on remand to ascertain the size and scope of the easement by necessity and to enter an appropriate judgment otherwise in conformity with this Opinion.
ALL CONCUR. BRIEF FOR APPELLANTS: John T. Aubrey
Manchester, Kentucky BRIEF FOR APPELLEE: R.W. Dyche, III
London, Kentucky