In Paine v. LaQuinta Motor Inns, Inc., Ky.App., 736 S.W.2d 355, 358 (1987), the court noted that "a subsequent purchaser for value who takes with notice of the restriction may be bound, even though the restriction may not be recorded." In support of this proposition, the Court cited Swinney v. Haynes, 314 Ky. 600, 236 S.W.2d 705 (1951), and Hedges v. Stucker, 237 Ky. 351, 35 S.W.2d 539 (1931). Neither of these cases are truly applicable to the validity of a restrictive covenant purportedly established by an unrecorded instrument, since both involve implied grants or reservations of easements.
that where the owner of an entire tract of land, or of two or more adjoining parcels, employs a part thereof so that one derives from the other a benefit or advantage of a continuous and apparent nature, and sells the one in favor of which such ... easement exists, such easement, being necessary to the reasonable enjoyment of the property granted, will pass to the grantee by implication. 315 S.W.3d at 716, quoting Swinney v. Haynes, 236 S.W.2d 705, 707 (Ky. 1951) (emphasis added). This is precisely what occurred in this case.
"The authorities are agreed, and such is the rule in this state, that where the owner of an entire tract of land, or of two or more adjoining parcels, employs a part thereof so that one derives from the other a benefit or advantage of a continuous and apparent nature, and sells the one in favor of which such continuous and apparent quasi-easement exists, such easement, being necessary to the reasonable enjoyment of the property granted, will pass to the grantee by implication."Swinney v. Haynes, 314 Ky. 600, 603-604, 236 S.W.2d 705, 707 (1951) (quoting Hedges v. Stucker, 237 Ky. 351, 35 S.W.2d 539, 540 (1931)).The legal reasoning of our predecessors was not novel and remains in conformity with the general rule as cited in 25 Am.Jur.2d Easements and Licenses in Real Property § 93 (2004):
"The authorities are agreed, and such is the rule in this state, that where the owner of an entire tract of land, or of two or more adjoining parcels, employs a part thereof so that one derives from the other a benefit or advantage of a continuous and apparent nature, and sells the one in favor of which such continuous and apparent quasi easement exists, such easement, being necessary to the reasonable enjoyment of the property granted, will pass to the grantee by implication."Swinney v. Haynes, 314 Ky. 600, 603-604, 236 S.W.2d 705, 707 (1951) (quoting Hedges v. Stucker, 237 Ky. 351, 35 S.W.2d 539, 540 (1931)). The trial court found as a matter of law that the easement description in Link's chain of title was sufficient for the existence of an express easement.
Kreamer v. Harmon, 336 S.W.2d 561, 563 (Ky. 1960). See also Swinney v. Hayne, 314 Ky. 600, 236 S.W.2d 705 (1951). Generally, in order to prove a quasi-easement by implication of law, a party must show: (1) that there was a separation of title from common ownership; (2) that before the separation occurred the use which gave rise to the easement was so long continued, obvious, and manifest that it must have been intended to be permanent; and (3) that the use of the claimed easement was highly convenient and beneficial to the land conveyed.
Kreamer v. Harmon, 336 S.W.2d 561, 563 (Ky. 1960). See also Swinney v. Haynes, 314 Ky. 600, 236 S.W.2d 705 (Ky. 1951). Generally, in order to prove an easement by implication of law, a party must show: (1) that there was a separation of title from common ownership; (2) that before the separation occurred the use which gave rise to the easement was so long continued, obvious, and manifest that it must have been intended to be permanent; and, (3) that the use of the claimed easement was highly convenient and beneficial to the land conveyed.
Kreamer v. Harmon, 336 S.W.2d 561, 563 (Ky. 1960). See also Swinney v. Haynes, 314 Ky. 600, 236 S.W.2d 705 (Ky. 1951). Generally, in order to prove an easement by implication of law, a party must show: (1) that there was a separation of title from common ownership; (2) that before the separation occurred the use which gave rise to the easement was so long continued, obvious, and manifest that it must have been intended to be permanent; and, (3) that the use of the claimed easement was highly convenient and beneficial to the land conveyed.
Kreamer v. Harmon, Ky., 336 S.W.2d 561, 563 (1960). See also Swinney v. Haynes, 314 Ky. 600, 236 S.W.2d 705 (1951).Evanik v. Janus, 120 Ill. App.3d 475, 485, 458 N.E.2d 962, 969 (1983); Bob's Ready to Wear, Inc., 569 S.W.2d at 718.
Kreamer v. Harmon, Ky., 336 S.W.2d 561, 563 (1960). See also Swinney v. Haynes, 314 Ky. 600, 236 S.W.2d 705 (1951).Evanik v. Janus, 120 Ill. App.3d 475, 485, 458 N.E.2d 962, 969 (1983); Bob's Ready to Wear, Inc. v. Weaver, Ky.App., 569 S.W.2d 715, 718 (1978).
Finally, contrary to what appellants argue, in this situation a subsequent purchaser for value who takes with notice of the restriction may be bound, even though the restriction may not be recorded. Swinney v. Haynes, 314 Ky. 600, 236 S.W.2d 705 (1951); Hedges v. Stucker, 237 Ky. 351, 35 S.W.2d 539 (1931); Restatement of Property §§ 524,525 (1944); 20 Am.Jur.2d Covenants, Conditions, and Restrictions §§ 304,305 (1965). Cf. 3 Powell ¶ 411 (4) (1987); 5 Powell ¶ 671.