Opinion
NO. 2018-CA-000796-MR
06-28-2019
CHARLES MICHAEL FEE and MARY FEE APPELLANTS v. RICHARD D. CHEATHAM, JR. and GAIL CHEATHAM APPELLEES
BRIEF FOR APPELLANT: John T. Aubrey Manchester, Kentucky BRIEF FOR APPELLEES: Marilyn Benge McGhee London, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE GREGORY A. LAY, JUDGE
ACTION NO. 17-CI-00094 OPINION
AFFIRMING IN PART AND REVERSING IN PART
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BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND KRAMER, JUDGES. KRAMER, JUDGE: Charles and Mary Fee appeal from an order of the Laurel Circuit Court which found that the Fees did not have an easement by prescription nor an easement by estoppel to a roadway on the Cheathams' property. We affirm in part and reverse in part.
Factual and Procedural Background
Charles and Mary Fee purchased a tract of land in Laurel County in 1992. The Fees' property is situated between Highway 552 and Cassidy Road. Structurally, the property featured only a barn at the time of purchase. The Fees made improvements to the barn and built a cabin and pond on the property. The Fees also began to raise cattle on the land. At the time of purchase, ingress and egress to the property were by use of a roadway from Highway 552 and terminating at or near the Fee property line ("the roadway"). The Fees used the roadway to bring in equipment and supplies to make the improvements to their property. Although the Fees eventually constructed another gravel driveway to their farm from Cassidy Road, they continued to use the roadway from Highway 552 to haul cattle to and from market and for deliveries of feed, fertilizer, and lime.
The Cheathams argue that the Fees stopped using the roadway in 2000, when they built the other driveway off of Cassidy Road. However, this is inconsistent with the evidence presented at trial. Charles Fee testified that he used the roadway until 2016, when the Cheathams erected a gate. The Cheathams point to the deposition of Charles Fee; however his deposition was not introduced at trial for the purpose of impeachment, and it simply does not demonstrate that the Fees' use of the roadway ceased in 2000, as the Cheathams assert.
In 1993, Richard and Gail Cheatham purchased a piece of property facing Highway 552. This property borders the Fee property. However, the Cheathams suspected that the survey of the property was incorrect and hired Ralph Peters to perform another survey. The survey showed that the Cheathams owned the land upon which the roadway sits. The Cheathams constructed a house on their tract of land and moved into the home in 1995. The Cheathams' home is accessed from Highway 552 via the roadway in question. In 2015, the Cheathams purchased another neighboring tract of land. They removed the old house on the newly acquired property and made various improvements to the land. It is uncontested that the roadway is on the Cheatham property and has been on their property since the time of purchase in 1993. It is also undisputed that there is no language in any deed that grants an easement to the Fees.
In July 2016, the Cheathams erected a gate on the roadway which blocked ingress and egress from the Fees' property via Highway 552. At the same time, Richard Cheatham told Charles Fee that he could no longer use the roadway. The Fees filed this lawsuit thereafter. The trial court denied the Fees' motion for a temporary injunction that would have allowed them to continue using the roadway during the pendency of the litigation. A bench trial was held on March 20, 2018. On May 10, 2018, the trial court entered an order dismissing the Fees' action and finding, in relevant part, that the Fees did not have an easement by estoppel nor an easement by prescription. This appeal followed. Further facts will be developed as necessary.
The trial court also found that the roadway was not a county roadway and was a private road. Those findings have not been appealed.
Standard of Review
The trial court conducted a bench trial in this matter. "In all actions tried upon the facts without a jury . . . , the court shall find the facts specifically and state separately its conclusions of law thereon and render an appropriate judgment[.]" CR 52.01. Upon review, "[f]indings of fact[ ] shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Id. A trial court's findings of fact are not clearly erroneous if supported by substantial evidence. Ellington v. Becraft, 534 S.W.3d 785, 790 (Ky. 2017) (internal citation omitted). "Substantial evidence is evidence that a reasonable mind would accept as adequate to support a conclusion and evidence that, when taken alone or in the light of all the evidence, has sufficient probative value to induce conviction in the minds of reasonable men." Id. (internal quotations and citations omitted).
Kentucky Rule of Civil Procedure.
If the trial court's findings are supported by substantial evidence, the role of the appellate court is confined to determining whether the findings of fact support the trial court's conclusions of law. Id. In review of the conclusions of law, this Court conducts a de novo review. Id.
Easement by Prescription
The Fees argue that the trial court erred in not finding an easement by prescription. We agree.
The trial court's findings of fact include, in relevant part,
20. [Plaintiffs] insist they have an easement by prescription since they have used the [roadway] since 1992, without objection by... the Cheathams, for bringing in feed and taking cattle to and from market and for other farm related matters.
21. The Fees admit they have access from Cassidy Road for conducting their farming operation. The Court realizes that it may be more convenient and less expensive for the Fees to use the [roadway] owned by the Cheathams than to travel up and down their hill to and from Cassidy Road; however, a Court will not impose a judicially sanctioned easement for someone's convenience.
22. A prescriptive easement can only be acquired by adverse possession which requires that the use of the [roadway] be actual, open, notorious, hostile, exclusive, and continuous for 15 years. The Court is not inclined to open up the [roadway] for the Fees to use as they have not proven the elements for adverse possession.
23. The testimony of all parties and lay witnesses was such that no exclusive, notorious, or hostile use of the [roadway] occurred until July, 2016.
24. Based on the case law referred to below, the Court finds that the actions of the Fees and the adjacent property owners, the Cheathams... do not compel the Court to declare a prescriptive easement as all of the elements necessary for same have not been satisfied[.]
. . .
26. The Fees admit they have no deed or other writing granting them an easement and because the Fees have access to, through and over their land, there is no necessity for the Court to impose an easement through
the lands of the Defendants. The Defendants clearly own their two tracts of property in fee simple absolute.
From these facts, the trial court made the following conclusions of law, in relevant part:
9. ...[t]he Court believes if a fire truck can traverse [the Fees' driveway from Cassidy Road], Mr. Fee's equipment and trucks can as well. The Fees have at least two (2) access areas along Cassidy Road which they still own and they can use their own land for their own purposes... The Court is without authority to impose a prescriptive easement because of convenience. Gibson v. Madden, 17 S.W.2d 263 [Ky. 1929].
10. The law as to prescriptive easements does not compel the Court to impose an easement by prescription. The Fees urge the Court to impose a judicially granted easement by prescription; however, the elements of same are missing from the facts of the case. The creation of a prescriptive easement is comparable to acquisition of land by adverse possession. Cole v. Gilvin, 59 S.W.3d 468 (Ky.[ ]App. 2001). Those elements are that the adverse possession must be actual, hostile, open, notorious, exclusive and continuous for a statutory period of fifteen years. Columbia Gas Transmission Corp. v. Consol of Kentucky, Inc., 15 S.W.3d 727 (Ky. 2000) and Poe v. Gaunce, 371 S.W.3d 69 (Ky. App. 2011). Additionally, the hostility must be to the exclusion of all others. Adverse possession is the holding of the land with intention of taking and holding it as his, to the exclusion of all others. Nelson v. Johnson, 226 S.W. 94 (Ky. 1920). The exclusivity element "means that the property must not be shared with the diseased [sic] owner. Two or more persons may be coadverse possessors..." Ellington v. Becraft, 534 S.W. 3d 785 n. 3 (Ky. 2017)... The Court is of the opinion that the use of the [roadway] by Mr. Fee or his agents was sporadic and that there was no notorious behavior or hostility apparent until July 2016 when the Cheathams disallowed the Fees'
use of the [roadway]. Certainly, there was no exclusion by Mr. Fee. The Goble property was landlocked and the Cheathams allowed their predecessors, Mr. Centers and Ms. Goble, to use [the roadway]. Once Ms. Goble sold her 3 acres to Ms. Cheatham, Ms. Cheatham drained the pond on that property and landscaped and improved the 3 acres to the exclusion of Mr. Fee. No one lived on the Goble property as the house was torn down by the Cheathams and they use that three acres as shown in the photographs as a garden and lawn. Also, Ms. Minton has been allowed to use the [roadway] because she too is landlocked, and her drive is very near the end of the [roadway] near Highway 552. Thus, Mr. Fee has not used the [roadway] to the exclusion of others.
This is the same property purchased by the Cheathams in 2015.
A trial court's "findings of fact are clearly erroneous only if they are manifestly against the weight of the evidence." Frances v. Frances, 266 S.W.3d 754, 756 (Ky. 2008). After review of the trial court's findings and the record before us, we find several instances of clear error.
Although the elements necessary to obtain a prescriptive easement are similar to those necessary to obtain fee simple title to land by adverse possession,
[a] private passway may be acquired by prescriptive use although a right of way is not strictly a subject of continuous, exclusive, and adverse possession. It is sufficient if the use exercised by the owner of the dominant tenement is unobstructed, open, peaceable, continuous, and as of right for the prescribed statutory period.Pickel v. Cornett, 285 Ky. 189, 147 S.W.2d 381, 382 (1941).
It was clear error on the part of the trial court when it found that no "exclusive, notorious, or hostile use of the [roadway] occurred until July 2016." (Emphasis added). The evidence contained in the record shows that the Fees' use of the roadway stopped altogether in July 2016. The issue is not whether the elements necessary to acquire a prescriptive easement occurred after July 2016, but rather, whether the elements were satisfied prior to July 2016. We conclude that they were.
The record before us, including unrefuted testimony by the Fees, indicates the Fees used the roadway for a period of twenty-four years, well beyond the fifteen years required by statute. The use was unobstructed until the Cheathams erected a gate in July 2016. The record also indicates that the Fees' use was continuous until that time. Charles Fee testified he used the roadway once per year for delivery of bulk feed, fertilizer, and lime. He also testified that he used the roadway to haul cattle to and from market throughout the year. The Cheathams testified that, although they have not seen trucks hauling feed, fertilizer, or lime to the Fees' property on the roadway, they have seen Charles Fee come and go "every now and then" and "sporadically" with his cattle trailer. Richard Cheatham testified that Charles Fee left ruts in the roadway due to his use and the ruts were still there at the time of trial. In Lyle v. Holman, 238 S.W.2d 157 (Ky. 1951), our former high court held that a prescriptive easement existed after twenty years of continuous use, even though the passway at issue was utilized by delivery trucks only once per year during the tobacco selling season. The Kentucky Supreme Court recently held that a prescriptive easement existed even though use of the passway at issue was limited to one or two times per year. See Ellington, 534 S.W.3d at 800.
See Kentucky Revised Statute (KRS) 413.010.
It is unclear from the record before us if these items were delivered at separate times throughout the year. David Walker, an employee of Southern States Co-op, also testified that he delivered bulk feed to the Fees' farm via the roadway prior to 2016. Kevin Centers, a former neighbor, testified that he saw either lime or fertilizer delivered to the Fees' farm via the roadway.
Gail Cheatman acknowledged that she worked dayshift during the period of use by the Fees.
In Ellington, the plaintiff's family utilized the passway to access their property from 1954 - 2004. The passway was also used to haul cattle to and from the plaintiff's property. Neither the plaintiff nor his predecessors ever asked for permission to use the passway and the defendants never tried to stop anyone from using the passway prior to erection of a gate in 2004.
"Where the claimant has shown such long continued use, it will be presumed the use was under a claim of right, and the burden is upon the owner of the servient estate to show that the use was merely permissive." Pickel, 147 S.W.2d at 382 (internal citation omitted). The record before us contains no evidence that the Fees obtained permission from the Cheathams to use the roadway. The trial court misconstrues the meaning of "hostility" in the context of a prescriptive easement. "To say that possession is hostile should mean nothing more than that it is without permission of the one legally empowered to give possession, usually the owner." Henninger v. Brewster, 357 S.W.3d 920, 927 (Ky. App. 2012) (internal citation omitted). Prescriptive easements are founded on acquiescence. "[C]lear conduct indicating that a property owner is not acquiescing as to a prospective easement owner's claim of right should rightfully be considered as ending the running of the prescriptive period." Allen v. Thomas, 209 S.W.3d 475, 481 (Ky. App. 2006). The record shows that this clear conduct did not happen until July 2016 when the Cheathams erected a gate and told Charles Fee that he could no longer use the roadway. However, for the preceding twenty-four years, the Fees' use of the roadway was without permission and, therefore, hostile. The trial court erred in concluding otherwise.
Another aspect of the trial court's reasoning for denying a prescriptive easement to the Fees is that they have access to their property from Cassidy Road and, therefore, use of the roadway in question is not necessary. The Court also found that, because a fire truck could traverse the driveway to the Fees' property from Cassidy Road, use of the roadway was not necessary for trucks hauling feed, fertilizer, or lime to the Fees' property. Necessity is not a required element of a prescriptive easement. Indeed, our former high court found the existence of prescriptive easement after twenty years of use even though other means of ingress and egress were available to delivery trucks. See Lyle, 238 S.W.2d at 159.
This was per the testimony of Richard Bales, chief of the local volunteer fire department. --------
Accordingly, upon review of the finding of facts for clear error, we conclude that the trial court erred in finding that the elements necessary for an easement by prescription were not present until July 2016. We also conclude that the trial court erred in finding the elements necessary to create an easement by prescription "are missing from the facts of this case." Necessity is not an element the Fees need demonstrate for a prescriptive easement. The record before us shows that the Fees' use of the roadway was unobstructed, open, peaceable, continuous, and as of right for the prescribed statutory period. See Pickel, 147 S.W.2d at 382.
An easement created through prescriptive use is limited to the use during the prescriptive period and must be defined in conformity with the nature of its use. Ellington, 534 S.W.3d at 801. Therefore, the Fees' easement across the Cheathams' property is limited to the use found by the trial court during the prescriptive period, which was ingress and egress "for bringing in feed and taking cattle to and from market and for other farm related matters."
Easement by Estoppel
The Fees also argue that the trial court erred in not finding an easement by estoppel. We disagree.
Specifically, the trial court stated that
11. ...An easement by estoppel concerns prohibiting a party from denying the existence of a right to use the
property, such as a license, based on justifiable reliance that the license will continue, and the reliance derives from the conduct by the licensor and typically also includes actions by the licensee, such as the making of improvements based on that reliance. Gosney v. Glenn, 163 S.W.3d 894, 899 (Ky. App. 2005)... Mere acquiescence is not sufficient to create an estoppel. The party asserting it must have been induced to act to his detriment or misled to his injury. Embry v. Turner, 185 S.W.3d 209 (Ky. App. 2006). Ne[i]ther the [Cheathams] or the Centers or Ms. Goble made any material misrepresentation upon which the Fees reasonably relied. The Fees did not present any evidence that they have maintained or improved the Cheatham's driveway or that their sporadic use of the roadway blossomed into an easement by estoppel.
12. The case law does not authorize this Court to adjudge an easement by estoppel as the requisite elements of same are not met by the dictates of Smith v. Howard, 407 S.W.2d 139 (Ky. 1966). The Fees have not changed their position to their prejudice and as a matter of fact made their own entrance to their property and their pasture field and that was done prior to the Cheathams' purchase of the [second tract of land in 2015].
We discern no error. The record before us is lacking any evidence that the Fees undertook activities on their property (e.g., making improvements to the barn; constructing the cabin and pond; and raising cattle) based in reliance upon statements or actions by the Cheathams. While a prescriptive easement is founded on acquiescence, we agree with the trial court that mere acquiescence is not sufficient to create an easement by estoppel. Embry, 185 S.W.3d at 216. Additionally, Charles Fee testified that, during the twenty-four years he used the roadway, he spent only approximately five dollars to make improvements to it. The trial court's findings are supported by substantial evidence.
Conclusion
In light of the forgoing, we AFFIRM the judgment of the Laurel Circuit Court with regard to finding that the Fees do not have an easement by estoppel. We REVERSE for a new judgment not inconsistent with this opinion regarding an easement by prescription.
ALL CONCUR. BRIEF FOR APPELLANT: John T. Aubrey
Manchester, Kentucky BRIEF FOR APPELLEES: Marilyn Benge McGhee
London, Kentucky