Opinion
2024-CA-0337-MR
11-15-2024
KENNETH L. MESSER; CECIL MESSER; DALLAS MESSER; DANIELLE PRICE; JEWELL MESSER BRINEGAR; LEATHA UTLEY; LESLIE F. MESSER; LOIS MESSER; AND ROBIN PRICE APPELLANTS v. CHARLES RAY KITCHEN; ANITA LITTERAL; AND JULIE KITCHEN APPELLEES
BRIEF FOR APPELLANT: Kelly M. Glass Lexington, Kentucky Bethany A. Breetz Lexington, Kentucky Kyle S. Schroader Lexington, Kentucky BRIEF FOR APPELLEE: James W. Lyon Greenup, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM GREENUP CIRCUIT COURT HONORABLE BRIAN CHRISTOPHER MCCLOUD, JUDGE ACTION NO. 21-CI-00171
BRIEF FOR APPELLANT: Kelly M. Glass Lexington, Kentucky Bethany A. Breetz Lexington, Kentucky Kyle S. Schroader Lexington, Kentucky
BRIEF FOR APPELLEE: James W. Lyon Greenup, Kentucky
BEFORE: COMBS, LAMBERT, AND MCNEILL, JUDGES.
OPINION
COMBS, JUDGE:
This appeal arises from litigation disputing the use and ownership of a roadway leading to a family cemetery in rural Greenup County. Appellants, Kenneth L. Messer, Jewell Messer Brinegar, Leslie F. Messer, Dallas Messer, Cecil Messer, Lois Messer, Danielle Price, Robin Price, and Leatha Utley (referred to collectively as "the Messer heirs") appeal the judgment of the Greenup Circuit Court entered on February 12, 2024. After our review, we affirm that portion of the judgment that determined the interests of the parties in the roadway. However, because it was never in dispute, we vacate that of the judgment concerning ownership of the family cemetery located at the end of the road.
In 1951, the Breathitt Circuit Court was asked to decide whether family members retained a right to use a family graveyard. The family farm on which a one-acre cemetery was located had been sold without a reservation or exception in the deed of conveyance concerning the cemetery. Rose v. Rose, 314 Ky. 761, 237 S.W.2d 80 (1951). The court decided that even where a deed of conveyance failed to reserve or except a cemetery, as long as the purchaser of the property had notice of the private cemetery, he could not interfere with the family's use of it for further burials, conducting memorial services, visiting, and/or maintaining it. Id.
Thereafter, in 1953, Doris Messer and Dana Messer, his wife, conveyed their Greenup County farm to Ellis E. Raike. Directly addressing the omission that had been the source of contention in Rose, their deed, duly recorded, provided, in pertinent part, as follows:
There is excepted and reserved from the above described land one acre for use as a cemetery on top of the hill
ba[ck] of where an old house used to set where said cemetery is presently located and there is also excepted and reserved a roadway, 12 feet wide, for the right of ingress and egress to said cemetery from the county road said roadway being where it is now presently located and situated and it is agreed and understood that first parties, their heirs and assigns, have the right to maintain and improve said roadway as needed.(Emphasis added.) Over the course of several decades, the farm was conveyed to one and then to another. The property conveyed to Raike in 1953 was eventually divided into separate parcels.
Over time (perhaps because it was viewed as superfluous in light of the court's holding in Rose), the deeds conveying the property stopped including language specifically excepting or reserving the one-acre cemetery and the roadway used to access it.
Anita Litteral, Charles Ray Kitchen, and Julie Kitchen, his wife, now own separate parcels adjoining the Messer family cemetery and the disputed roadway that leads to it. Their deeds do not include the earlier language excepting or reserving the cemetery or the disputed roadway. In April 2021, the Messer heirs file an action to quiet title in the Greenup Circuit Court concerning issues surrounding the ownership and proper use of the roadway (but not the cemetery).
The circuit court conducted a bench trial in May 2023. The Messer heirs argued that they own the disputed roadway in fee simple because it was specifically excepted or reserved in the initial deed of conveyance. Alternatively, they claimed it through adverse possession.
Appellees, Anita Litteral and the Kitchens, argued that they each own one-half of the disputed roadway because the deeds in their chains of title did not include language excepting or reserving it to the Messer heirs. Alternatively, they argued that their use of the roadway could not be precluded because they could establish easements (through either prescription or necessity) or quasi-easements.
The circuit court entered judgment in February 2024. The court was not persuaded that the Messer heirs retained a fee simple interest in the roadway. It interpreted the Messers' 1953 deed as creating a mere right of ingress and egress over the described roadway to the family cemetery. In noting the more sweeping nature of a fee simple interest, the court reasoned that specific authorization to maintain and improve the roadway as a means of ingress and egress constituted a far more limited usage than that sought by the Messer heirs. The court concluded that the Messer heirs merely possessed a right-of-way and the authority to maintain and improve the roadway; it held that Anita Litteral and the Kitchens were owners of servient estates and that they could use the disputed roadway in any way that did not impede the rights of the Messer heirs. It indicated that any of the parties could erect a locked gate or cable across the roadway to keep strangers out -- provided that keys or combinations were distributed among them.
In their appeal, the Messer heirs contend that the circuit court erred in its interpretation of the 1953 deed. They suggest that the court's interpretation is inconsistent with common sense and that it produces an absurd result. They argue that the deed must be interpreted to mean that they own the roadway in fee simple absolute because the phrase excepted and reserved specifically "withheld" the roadway from the 1953 conveyance.
The interpretation of a deed presents an issue of law; consequently, our review proceeds de novo. See Baker v. Hines, 406 S.W.3d 21 (Ky. App. 2013).
In Shields v. University of Louisville Foundation, Inc., 536 S.W.3d 706 (Ky. App. 2017), we noted that the term "excepted" has a technical legal definition and is meant to exclude from a conveyance some part of the property described. The term "reserved" in a deed typically creates a new property right "issuing out of the thing granted and which did not exist before as an independent right in behalf of the grantor. . . ." Id. (citing 4 Tiffany Real Property § 972 (3d ed. 2016)). Strictly speaking, an easement is created by a reservation in a deed and not by an exception.
However, we also observed that the use of the terms "excepted" and "reserved" in the language of deeds has been a great source of confusion and that the terms have routinely been used interchangeably despite their linguistically contradictory meanings. Shields, supra (citing Justice v. Justice, 216 Ky. 657, 288 S.W. 293 (1926); Rhoades v. Bennett, 307 Ky. 507, 211 S.W.2d 693 (1948); and 4 Tiffany Real Property § 972 (3d ed. 2016)). As a result, it has long been held that use of the terms "excepted" and "reserved" in a deed of conveyance is not definitive. Instead, the intention of the parties as gleaned from the four corners of the deed controls its interpretation. Id. (citing Rhoades v. Bennett, 307 Ky. 507, 211 S.W.2d 693 (1948); Standard Elkhorn Coal Co. v. Bolen, 193 Ky. 342, 236 S.W. 241 (1921); Hicks v. Phillips, 146 Ky. 305, 142 S.W. 394 (1912); and 28A C.J.S. Easements § 72 (2017)).
In this case, the circuit court did not err by interpreting the 1953 deed as creating an easement in the roadway instead of excluding the roadway from the conveyance entirely. We agree that the Messers intended to grant to themselves, their heirs, and assigns a mere right-of-way easement in the roadway. The 1953 deed conveying the farm specifically describes the road as being "reserved" and indicates that the interest reserved provides "for the right of ingress and egress to said cemetery from the county road." This language sufficiently signals the parties' intent to create a right-of-way easement. We are not persuaded that the court erred by deciding not to interpret the term "excepted" in its technical sense.
Anticipating that we might affirm the circuit court's judgment, the Messer heirs have also asked us to consider an issue not presented to the trial court; i.e., whether the costs of the road's maintenance must be shared by the parties.
However, this does not appear to be a genuine bone of contention among the parties. Although the circuit court did not adopt their positions with respect to the parties' interests in the disputed roadway, Litteral and the Kitchens have expressed to this Court that they are "satisfied with the decision of the Greenup Circuit Court which simply granted them use of the roadway along with the Messer heirs." Moreover, they have indicated to the Messer heirs and to this Court that they "and their families, are willing to contribute labor and finances for maintenance of the roadway." We need not elaborate further as there appears to be no real controversy on this point.
Because the circuit court correctly adjudged the respective interests and rights in the use of the disputed roadway, we affirm that portion of its judgment. However, neither the respective interests nor rights in the use of the cemetery were ever at issue. Therefore, because the issue of the cemetery itself was never in dispute before the trial court, we vacate that portion of its judgment addressing the cemetery.
ALL CONCUR.