Opinion
NO. 2014-CA-000466-MR
05-01-2015
RICHARD BRENNICK AND GAYLE BRENNICK APPELLANTS v. BIGE HENSLEY AND MARGARET HENSLEY APPELLEES
BRIEFS FOR APPELLANTS: Jennifer Caudill Bundy London, Kentucky BRIEF FOR APPELLEES: Allen B. Roberts McKee, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CLAY CIRCUIT COURT
HONORABLE OSCAR G. HOUSE, JUDGE
ACTION NO. 07-CI-00232
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; DIXON AND STUMBO, JUDGES. STUMBO, JUDGE: Richard Brennick and Gayle Brennick appeal from a Judgment of the Clay Circuit Court granting an easement by prescription to use and maintain a roadway crossing a parcel of real property owned by the Brennicks. The Brennicks contend that the Plaintiffs/Appellees did not demonstrate the elements of adverse possession sufficient to establish an easement by prescription, and that any usage of the roadway was merely permissive. We find no error, and AFFIRM the Judgment on appeal.
The Plaintiffs/Appellees Bige and Margaret Hensley own a parcel of real property situated on Gabbard's Fork in Clay County, Kentucky. On June 29, 2007, they filed a Complaint in Clay Circuit Court seeking a Declaratory Judgment recognizing a prescriptive easement allowing their usage of a roadway crossing property owned by Defendants/Appellants Richard and Gayle Brennick. According to the Complaint, the Hensleys and their predecessors in interest used the roadway to access the Hensley property in an open and continuous manner for more than fifteen years. They alleged that the Brennicks wrongfully blocked the roadway, thus restricting the Hensleys' usage of same. The Brennicks responded with a general denial.
A bench trial was conducted in Clay Circuit Court on April 9, 2013, where the parties testified and several exhibits were introduced into evidence. At the conclusion of the trial, the court determined that the Hensleys had established the existence of a prescriptive easement to use the roadway, and that their predecessors in interest had also used the roadway to travel from Gabbard's Fork Road to their property that is situated behind the property owned by the Brennicks. The Brennicks' subsequent Motion for Judgment Notwithstanding the Verdict was overruled, and this appeal followed.
The Brennicks now argue that the Clay Circuit Court committed reversible error in denying their Motion for Judgment Notwithstanding the Verdict because the Judgment was contrary to the law and not supported by the evidence. Specifically, the Brennicks contend that the Hensleys did not prove the elements necessary to establish a prescriptive easement, to wit, that their usage of the roadway was actual, open, notorious, forcible, exclusive and hostile for at least fifteen years. Additionally, they argue that any usage of the roadway was merely permissive, which further demonstrates that the Hensleys could not prevail on their claim. The Brennicks seek an Order vacating the Judgment on appeal.
As the parties are well aware, the law of prescriptive easements is derived from the principles of adverse possession. Cole v. Gilvin, 59 S.W.3d 468 (Ky. App. 2001). In order to establish a prescriptive easement, a party must demonstrate that the adverse usage of the roadway was "actual, open, notorious, forcible, exclusive and hostile" for a period of at least fifteen years. Id. at 475. Additionally, a prescriptive easement may be acquired although the right of way is not strictly a subject of continuous and exclusive usage. Rather, it is sufficient if the owner of the dominant tenement is "unobstructed, open, peaceable, continuous, and as of right for the prescribed statutory period." Id. (internal quotation marks, footnote, and citation omitted).
In the matter at bar, Richard Brennick testified that a few days after he and his wife purchased their property, Bige Hensley introduced himself to them, invited them to church, and told them that the roadway running from Gabbard's Fork and across the Brennick property had always been used to access the Hensley property. Mr. Brennick further stated that in the spring of 2006, he and his wife returned to the Brennick parcel after an extended absence and observed that the roadway at issue had been mowed - presumably by Mr. Hensley. Later that year, Mr. Brennick placed a cable across the roadway where it met Gabbard's Fork Road, which resulted in the instant litigation.
In examining the matter, the Clay Circuit Court found that the parcel currently owned by the Hensleys was originally purchased by Bige Hensley's father, Owen Hensley, in 1928. Owen Hensley deeded the parcel to his wife Rachel and son Owen Jr. in 1946. In 1999, Rachel Hensley deeded her interest to Owen Hensley Jr., who then deeded his interest to the Plaintiffs/Appellees in 2006. The court went on to conclude from the evidence at trial that the roadway at issue was used by the Plaintiffs/Appellees and their predecessors in title to obtain access to their parcel across the now Brennick parcel since 1928. As part of this usage, the court found that Owen Hensley Sr. rented his parcel to various persons, who also used the roadway until 1963.
Additionally, it was determined by the court that the Hensleys and their predecessors used the roadway for about fifteen years to tend cattle that were pastured on their parcel. Other uses of the roadway, according to the trial court, included access for hunting on the Hensley parcel, and the maintenance of gas wells on the Hensley parcel. Finally, the court noted that Bige Hensley and his family since 1963 maintained the roadway on an annual basis by grading it and doing other necessary work to keep it passable. Other testimony established that Bige Hensley mowed or "bush hogged" the roadway up to two times per year, and installed a drainage tile on the roadway. Many of these findings were based on the testimony of Bige Hensley and Barbara Ann Jackson, each of whom the court characterized as credible witnesses. Jackson was a predecessor in title to the Brennicks for at least eleven years.
After making findings of fact, the trial court applied those findings to Cole, supra, and the related case law setting forth the elements of prescriptive easements. In so doing, the court concluded that,
the plaintiffs and their predecessors in title have established that they used the roadway in question in an actual, open, notorious, forcible, exclusive, and hostile manner since at least 1928 and continuing up to the time that the access to the roadway was blocked by the defendants. This use of the roadway in question has been established by the clear weight of the evidence to have been open, peaceable, continuous, and as of right for that same period.
The Brennicks contend that the Hensleys did not acquire their parcel until after the Brennicks had placed a cable across the subject passway, and that the Brennicks had no knowledge of a purported prescriptive easement when they purchased the property. Even if true, we cannot conclude that the placement of a cable across the passway operated to extinguish the usage of the dominant tenement which the trial court determined was first established in 1928. Additionally, there is little to support the Brennicks' assertion that the usage of the roadway by the Hensleys and their predecessors was merely permissive.
The dispositive questions for our consideration are: 1) whether the trial court's findings of fact are supported by substantial evidence and are therefore not clearly erroneous, Kentucky Rules of Civil Procedure 52.01, and 2) whether the trial court properly determined that the Hensleys sufficiently proved the elements of a prescriptive easement as set out in Cole and the related case law. We must answer these questions in the affirmative. The record amply demonstrates that substantial evidence exists to support the trial court's finding that the Hensleys and their predecessors in title utilized the roadway since 1928. In addition, the trial court properly concluded from the record that the usage was actual, open, notorious, forcible, exclusive, and hostile for the statutory period of fifteen years. The record and the law support the Clay Circuit Court's conclusion that the Hensleys established a prescriptive easement over the roadway at issue, and we find no error. For the foregoing reasons, we AFFIRM the Judgment of the Clay Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANTS: Jennifer Caudill Bundy
London, Kentucky
BRIEF FOR APPELLEES: Allen B. Roberts
McKee, Kentucky