Opinion
NO.2013-CA-000869-MR
03-21-2014
DWAYNE PERGREM, INDIVIDUALLY, AND AS ADMINISTRATOR OF THE ESTATE OF LOUISE PERGREM APPELLANT v. JONAS ADAMS; CAVE RUN RESORTS AND STABLES, INC.; BATH COUNTY, KENTUCKY; AB&A PROPERTIES; AB&A PROPERTIES, INC.; NAOMI IVANS; BRENDA KAY PERGREM; BOBBY STEENBERGEN; SHIRLEY STEENBERGEN; DWIGHT LANCASTER; TOY LANCASTER; SANDY STRUBLE; AND JOHN DAVID HERRINGTON APPELLEES
BRIEFS FOR APPELLANT: David A. Barber Paula Richardson Owingsville, Kentucky BRIEF FOR APPELLE BRENDA KAY PERGREM: Paul R. Stokes Morehead, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BATH CIRCUIT COURT
HONORABLE WILLIAM EVANS LANE, JUDGE
ACTION NO. 10-CI-90161
OPINION
AFFIRMING
BEFORE: CLAYTON, COMBS AND STUMBO, JUDGES. STUMBO, JUDGE: Dwayne Pergrem, Individually and as Administrator of the Estate of Louise Pergrem, appeals from an "Order of Interpretation" rendered by the Bath Circuit Court. That Order disposed of the Motion of Brenda Kay Pergrem to interpret 1960 and 2006 Orders pertaining to an easement or passway situated on the servient estate of Dwayne Pergrem in Bath County, Kentucky. Dwayne Pergrem now argues that the circuit court erred in finding that the Appellees can use the easement in question without any limitation. He also contends that the circuit court erred in concluding that a prior Opinion of the Court of Appeals did not limit Appellees' use of the passway to farm use only. For the reasons stated below, we Affirm the Order on appeal.
In 2006, Jonas Adams petitioned the Bath Circuit Court seeking a Declaration of Rights regarding an easement or passway situated on the servient estate of Dwayne Pergrem in Bath County, Kentucky. That easement was first recognized by way of an Order and Judgment rendered by the Bath Circuit Court in 1960, which ruled in relevant part that an easement existed over the servient estate of Dwayne Pergrem's predecessor in interest from Kentucky Highway 211 to a parcel then owned by Adams' predecessor in interest. The Judgment provided for the reasonable usage of the easement by the dominant estate, with the servient estate having the right to install "gates, gaps or cattle guards under or across said passway as will not interfere unduly or unreasonably with the use of said passway by [Adams' predecessor] and the traveling public." The Judgment also found that the servient estate "will not interfere unduly or unreasonably with the use of said passway by plaintiffs and the traveling public."
In disposing of the 2006 Declaration of Rights action, Judge William Mains concluded that the scope of the easement included ingress and egress, and that Adams had the right to maintain the passway but not the right to make material changes in the easement nor to enlarge its usage.
Adams appealed that decision to this Court. A panel of this Court, in an Opinion authored by Judge Laurance VanMeter, stated that,
Further, we are not persuaded by the remaining issues which Adams raises relating to the location, maintenance and modification of the passway. It is well established that unless a granting instrument provides otherwise, an easement with a fixed location cannot be relocated without the express or implied consent of the owners of both the servient and the dominant estates. Wells v. Sanor, 151 S.W.3d 819 (Ky. App. 2004). Although Adams has the duty to maintain the private passway in a safe traveling condition, Spalding v. Louisville & N.R. Co., 281 Ky. 357, 136 S.W.2d 1 (1940), he cannot increase the burden imposed on the Pergrems' estate by the passway. Plunkett v. Weddington, 318 S.W.2d 885 (Ky. 1958). Thus, in the absence of any agreement between the parties, Adams' right to use the passway may not be expanded for his own convenience or that of his customers, or for other general purposes. See Campbell v. Winchester Realty Co., 294 S.W.2d 919 (Ky. 1956).Adams v. Pergrem, 2007 WL 4277900 at p. 2 (Ky. App. 2007). Adams did not appeal this Court's 2007 Opinion.
It follows that the trial court did not clearly err by finding that the passway would be impermissibly enlarged if Adams was permitted either to maintain it "at a width sufficient to allow vehicles to pass as they exit and enter" the property, or to install a water line beneath or beside the passway. The record indicates that since Adams acquired his property in 2004, he has established a sizeable horse boarding, training, and riding business which he and his customers must access by using the passway across the Pergrems' land. Adams complains of the difficulties which he and his customers experience because the passway is, in some places, too narrow to
permit either the passing of two vehicles, or the property's easy entrance or exit by vehicles with horse trailers. However, Adams simply has no right to expand his use of the Pergrems' property beyond the limited passway which was established long ago for farm purposes. Further, given that the established rights only provide for the passway's use in accessing other property, Adams clearly has no right to expand the use of the passway through the installation of a water line. Cf. Higdon v. Nichols, 204 Ky. 56, 263 S.W. 665 (1924).
On July 15, 2010, Dwayne Pergrem, Individually and as Administrator of the Estate of Louise Pergrem (hereinafter "Appellant"), filed a Verified Complaint in Bath Circuit Court against Adams and Bath County, Kentucky. Appellant alleged that Adams' usage of the passway constituted a private nuisance and trespass, and inflicted extreme emotional distress on Appellant. As a basis for the complaint, Appellant cited the Judge VanMeter's 2007 Court of Appeals holding that "Adams simply has no right to expand his use of the Pergrems' property beyond the limited passway which was established long ago for farm purposes." (Emphasis added). Appellant alleged that Adams started a business referred to as Cave Run Resort and Stables, that he used and continues to use the passway for commercial purposes in violation of the terms of the easement, and that he improperly widened the roadway and installed a bridge that was more than double the width of the existing roadway. A First Amended Complaint was filed on June 27, 2011.
On August 18, 2010, Brenda Kay Pergrem purchased the business and real property from Adams. On September 12, 2012, and during the pendency of the instant litigation, Pergrem filed in Bath Circuit Court a "Motion to Interpret Order Entered by Judge William Mains". She argued therein that Appellant's argument relied on "two poorly or improperly worded sentences in the legal reasoning" underlying Judge VanMeter's 2007 Opinion. Specifically, Pergrem maintained that the 2007 Opinion improperly stated that, "Adams simply has no right to expand his use of the Pergrems' property beyond the limited passway which was established long ago for farm purposes." She argued that
[t]here is nothing in Judge Mains' Order which limited the then Petitioner, successor in title to this Defendant [Appellee Brenda Kay Pergrem], to use of the easement or passway for farm purposes only. As was the case in Judge Winn's Ruling some 46 years previously, the only discussion regarding farm use was the farm use of the Respondent in the 2005, [sic] case now the Plaintiff [Appellant].The corpus of her motion, then, was that the easement was not limited to farm usage, and that the Court of Appeals' "farm purposes" language was mere dicta.
The Bath Circuit Court subsequently rendered its "Order of Interpretation" on October 3, 2012. In addressing the 1960 and 2006 circuit court rulings, Judge Mains stated that,
The orders both are specific in that these present Defendants have access to their property over the property of the present Plaintiffs. The easement is limited to the width of 10 - 14 feet and is available to use of present Plaintiffs and even to the extent they can put in
gates, gaps or guards to the extent they do not hinder access for the Defendants. There is no limitation to farm use only as that reference is only as to Plaintiff may erect those barriers for their farming purposes and none of that is in reference to Defendants [sic] use of the access. The defendants [sic] cannot increase the easement to the extent it would further burden the servient owner, Plaintiff which was well covered in the 2006 order as it prohibited widening the road or installing water lines.
In reference to the McClean Cemetary limitation the Court has seen nothing that would indicate such a limitation. There is no reference in the previous orders to indicate that this is an easement solely for the purpose to access the cemetery, but to the contrary would be able to access the whole property in general without any limitation.
On March 19, 2013, Appellant moved to Alter, Amend or Vacate the "Order of Interpretation", and on April 4, 2013, he moved to continue the trial "until such time as a final decision is rendered as to the Court's orders because they eviscerate the Plaintiff's claims based upon trespass, nuisance, and request for permanent injunction."
On April 18, 2013, the Bath Circuit Court made the "Order of Interpretation" final and appealable, and sustained Appellant's motion to continue the trial date pending resolution of the instant appeal. This interlocutory appeal of the "Order of Interpretation" then followed.
Appellant now argues that the trial court, via its "Order of Interpretation", erred in concluding that the Appellees would be able to use the easement in question for "access [to] the whole property in general without any limitation." Appellant contends that the "Order of Interpretation" improperly has the effect of granting unrestricted use of the passway or easement to anyone who wants to use it and for any purposes, which runs afoul of this Court's 2007 Opinion holding that "Adams simply has no right to expand his use of the Pergrems' property beyond the limited passway which was established long ago for farm purposes." (Emphasis added). Appellant argues that this Court's "farm purposes" holding became the law of the case that is not subject to amendment by the Bath Circuit Court, that all parties are entitled to the finality afforded by this Court's prior Opinion, and that the "Order of Interpretation" - to the extent that it contradicts that holding - is clearly erroneous and must be reversed.
In response, Pergrem maintains that Judge VanMeter's usage of the phrase "farm purposes" is mere dicta and without binding legal effect herein. In support of this contention, she notes that the original 1960 Judgment made no limitation on how or why the easement was used by the dominant estate or the general public, but rather merely limited the width and placement of the easement, required the dominant estate to maintain it, and allowed the servient estate to place gates and cattle guards to the extent that they did not interfere with the dominant estate's reasonable usage. In sum, she maintains that there is no basis for concluding that Judge VanMeter's purported restriction of the easement to "farm purposes" was anything but dicta, and that the Bath Circuit Court did not err in its interpretation of the 1960 and 2006 Judgments.
The Bath Circuit Court's interpretation of the 1960 and 2006 Judgment is a matter of law, which is subject to de novo review. Manning v. Lewis, 400 S.W.3d 737 (Ky. 2013). The sole and dispositive question before us is whether the Bath Circuit Court erred in its characterization of the easement as allowing "access [to] the whole property in general without any limitation." Stated differently, our inquiry is whether Judge VanMeter's characterization of the easement as limited to "farm purposes" was a conclusion of law with binding legal effect, or merely dicta recognizing that both estates in 1960 were in fact utilized as farms. Based on our examination of the entire record, with special attention on the 1960 Judgment which first established the easement, we must conclude that Judge VanMeter's usage of the phrase "farm purposes" as it relates to the nature or scope of the easement is mere dicta and not the law of the case. We reach this conclusion for two reasons. First, the 1960 Judgment made no limitation as to purpose of the easement, and did not characterize it as existing for "farm purposes" - or any purposes for that matter. Rather, the 1960 Judgment recognized that, "Plaintiffs are adjudged to have a passway or easement over the lands of the defendants . . . and plaintiffs and the traveling public have the right to use same." (Emphasis added). The Bath Circuit Court did place physical limitations on the scope of the easement including the establishment of a cattle guard and the passway's placement "along the route said passway now takes." Further, the 2006 Judgment recognized a restriction in width of the original passway to 10 - 14 feet.
Second, the 2007 Court of Appeals Opinion mentions the purported "farm purposes" of the easement only once, and only in passing. The focus of the Opinion was the Bath Circuit Court's disposition of the parties' disagreement "as to Adams' rights to enlarge and improve the passway, and to install a water line under or along the passway." In Affirming the Bath Circuit Court's Order, and ruling that Adams did not have the right to widen the passway or to make the entrance easier for horse trailers to navigate, both the Order and this Court's Opinion were adverse to Adams' interests.
In sum, we conclude that the Bath Circuit Court did not err in its Order of Interpretation by concluding that the "easement is limited to the width of 10 - 14 feet", that there "is no limitation to farm use" and that the "defendants cannot increase the easement to the extent it would further burden the servient owner[.]" These provisions are expressly set forth in the 1960 and 2006 Judgments, and are not disturbed by the "farming purposes" language contained in the 2007 Court of Appeals Opinion.
For the foregoing reasons, we Affirm the Order of Interpretation of the Bath Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: David A. Barber
Paula Richardson
Owingsville, Kentucky
BRIEF FOR APPELLE BRENDA
KAY PERGREM:
Paul R. Stokes
Morehead, Kentucky