Opinion
NO. 2013-CA-000209-MR
07-18-2014
JOHN H. KITCHENS; AND LUCILLE KITCHENS APPELLANTS v. DELISA JEAN PENDLEY; AND LEONARD PENDLEY APPELLEES
BRIEF AND ORAL ARGUMENT FOR APPELLANTS: W. Curie Milliken Bowling Green, Kentucky BRIEF AND ORAL ARGUMENT FOR APPELLEES: Richard J. Deye Morgantown, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BUTLER CIRCUIT COURT
HONORABLE MICHAEL L. MCKOWN, JUDGE
ACTION NO. 11-CI-00108
OPINION
AFFIRMING
BEFORE: CLAYTON, JONES AND TAYLOR, JUDGES. TAYLOR, JUDGE: John H. Kitchens and Lucille Kitchens bring this appeal from a Butler Circuit Court judgment entered January 14, 2013, pursuant to a jury verdict finding that a right-of-way easement existed over the Kitchens' property. We affirm.
Delisa Jean Pendley and Leonard Pendley owned a tract of real property that directly abuts real property owned by the Kitchens. A dispute arose between the parties as to the existence of a right-of-way easement over the Kitchens' property. The Pendleys claimed that the right-of-way easement over the Kitchens' property was originally created by deed dated November 10, 1902, from W. Hunt to J. L. Vaughn and was recorded with the Butler County Clerk at Deed Book 12, Page 502 (1902 deed). The Kitchens disagreed, and eventually the Pendleys filed the instant action against the Kitchens in Butler Circuit Court.
The circuit court ruled that as a matter of law there existed a right-of-way easement over the Kitchens' property by express reservation in the 1902 deed. However, the circuit court instructed, inter alia, the jury as to whether the right-of-way easement claimed by the Pendleys was the same right-of-way easement reserved in the 1902 deed. The jury ultimately returned a verdict in favor of the Pendleys, and by judgment entered January 14, 2013, the circuit court recognized that a right-of-way easement existed over the Kitchens' property and enjoined the Kitchens from interfering with the Pendleys' use thereof. This appeal follows.
The Kitchens contend that the circuit court erred by failing to instruct the jury upon whether they were bona fide purchasers. We disagree.
It is the duty of the trial court to instruct the jury on every legal theory advanced by a party if substantive evidence supports same. Henson v. Klein, 319 S.W.3d 413 (Ky. 2010). Our case law has defined a "bona fide purchaser" of real property as one who had neither actual nor constructive notice of any defect in title and who gave valuable consideration for the purchase of the real property. Ky. River Coal Corp. v. Sumner, 195 Ky. 119, 241 S.W. 820 (1922). In the absence of actual notice, a purchaser of real property may, nevertheless, be charged with constructive notice of defects and/or encumbrances upon the real property if any appear upon a deed in his direct chain of title:
The general rule of constructive notice derived from deeds is that it extends to every instrument forming an essential link in the direct chain of title through which the purchaser holds; that is, to the ultimate source of his title, and to every necessary deed through which the title must be directly traced, and which is necessary to its establishment.Hyde Park Supply Co. v. Peck-Williamson Heating & Ventilating Co., 176 Ky. 513, 195 S.W. 1115, 1117 (1917) (citations omitted). As set forth above, constructive notice is recognized as extending to the purchaser's "ultimate source of title" in his direct chain of title. Id.
In the case sub judice, the Kitchens readily admit that deeds in their direct chain of title contain the right-of-way easement over their real property but maintain that the last deed containing such language was in 1922. In particular, they argue:
[N]o easement appears in the Kitchens chain of title after 1922. At the time the Kitchens purchased the property in 1973, the property had passed through several different hands. In none of these transactions, for fifty-one years, was there anything in the Deeds indicated [sic] that there was an easement across the Kitchens property. Moreover, both Mr. and Mrs. Kitchens testified at length that they had no notice of any easement until this lawsuit was commenced. The Kitchens had good reason toKitchens' Brief at 6-7.
believe that their property was unencumbered; they had received not one, but two Opinions of Title (one from Mr. Rueff and one from FHA) providing that there was no easement on the property. Indeed, the former Opinion showed that the Title had been examined for forty years prior to their purchase. . . .
While we certainly empathize with the Kitchens and believe that they may have possessed no actual knowledge of the right-of-way easement, they are, nonetheless, charged with constructive notice that a right-of-way existed over their property by its specific inclusion in deeds in their direct chain of title, including the 1902 deed. By operation of law, the Kitchens possess constructive notice of every deed in their direct chain of title back to their ultimate source of title, regardless of any search limitation in their title opinion. This is one reason why every purchaser of land should obtain a thorough title examination before closing. A purchaser also has the option to obtain title insurance to protect against any defects in their title or the title examination. As the Kitchens possessed constructive notice of the right-of-way easement as a matter of law, they do not qualify as bona fide purchasers. See Summer, 241 S.W. 820. Hence, we conclude that the circuit court properly refused to instruct the jury upon whether the Kitchens were bona fide purchasers.
The Kitchens next argue that the circuit court erred by "failing to define and limit" the right-of-way easement. Kitchens' Brief at 8. Particularly, the Kitchens maintain that the easement should be limited to agricultural purposes only.
In the 1902 deed, the reserved right-of-way easement read as follows:
We reserve a right of way to the Doolin farm on the same road now used or one as good and convenient from the corner of said land near said Vaughns barn to pass and repass on said road to said Doolin farm at all times with team, tools, or stock, or anything we may want to move on said road to or from said Doolin farm.
When an easement is expressly created by grant or reservation in a deed, the scope and extent of the easement is determined by the language in the deed creating it. 25 Am. Jur. 2d Easements and Licenses §§ 71, 73 (2014).
The original terms of the easement were fairly broad and specifically included the right to transverse the easement "at all times with team, tools, or stock, or anything we may want to move on said road." Particularly, the last phrase, "anything we may want to move on said road," evidences an intent that the use of the right-of-way not be restricted to merely agricultural uses. Consequently, we cannot say that the circuit court erred by failing to restrict the right-of-way easement to agricultural uses only.
In sum, we view the Kitchens' arguments to be without merit and affirm the judgment.
For the foregoing reasons, the judgment of the Butler Circuit Court is affirmed.
ALL CONCUR. BRIEF AND ORAL ARGUMENT
FOR APPELLANTS:
W. Curie Milliken
Bowling Green, Kentucky
BRIEF AND ORAL ARGUMENT
FOR APPELLEES:
Richard J. Deye
Morgantown, Kentucky