Opinion
No. 2003-CA-001120-MR.
October 1, 2004.
Appeal from Bullitt Circuit Court, Honorable Thomas L. Waller, Judge, Civil Action No. 02-CI-00701.
Mark Edison, Shepherdsville, Kentucky, Brief for Appellant.
John F. Carroll, Shepherdsville, Kentucky, Brief for Appellee.
Before: GUIDUGLI, JOHNSON, and MINTON, Judges.
OPINION
David Will, a residential subdivision developer, brought suit seeking injunctive relief and damages from the neighboring residential subdivision developer for having built a public street across a one-foot wide border strip of land in which Will had retained ownership. The circuit court concluded that Will had no legitimate reason for retaining ownership in this narrow strip that would override the presumed public interest in access to the subdivisions. The circuit court granted summary judgment to the neighboring developer and the City of Mt. Washington. We hold that the circuit court properly applied the law and we affirm.
In 1984, Will bought real property in Bullitt County near Mt. Washington for the purpose of developing the land as Northfield Subdivision. He hired a land surveyor, John St. Clair, to divide the property into various tracts. It is undisputed that the Northfield Subdivision plat prepared by St. Clair excluded from the subdivision a border strip measuring 1 foot wide by 655 feet long, located between the right-of-way on Walnut Drive and the adjoining property owned by Ardelia Moore. The plat noted that the strip was "hereby reserved by the owner for future use." Between 1984 and 1995, Will sold off all of the lots in the Northfield Subdivision and dedicated to public use various streets located in the subdivision.
In 1999, Oakbrooke bought most of the Ardelia Moore property located next to the strip intending to develop the property into a subdivision. In conjunction with its development of the subdivision, Oakbrooke constructed a 50 foot wide access-way across the subject strip to link the new development with Walnut Drive.
Will filed suit against Oakbrooke claiming trespass upon the strip and damage to the property by Oakbrooke for removing fencing, trees, and natural vegetation from the property. The complaint sought an injunction preventing Oakbrooke from trespassing onto the strip, damages for destruction to the property caused by Oakbrooke, and for punitive damages. The complaint joined Mt. Washington as an indispensable party. Ultimately, the circuit court granted summary judgment to Oakbrooke and Mt. Washington. Will appealed.
Summary judgment is appropriate where there exists no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We, of course, view all facts and inferences most favorably to the non-moving party.
Ky. R. Civ. Pro. 56; Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476 (1991).
Ogden v. Employers Fire Insurance Company, Ky., 503 S.W.2d 727 (1973); Mitchell v. Jones, Ky., 283 S.W.2d 716 (1955).
We have examined the record in this case, and there is indeed no question of fact but only a question of law. The question of law is whether a developer can retain an otherwise insignificant tract of property and keep adjoining landowners from passing over it when there is no apparent legitimate purpose for reserving ownership in the tract. Lotze v. Garrene Realty Development Company, Inc., and Stepp v. Webb, answer the question in the negative.
Ky., 309 S.W.2d 750 (1957).
Ky., 336 S.W.2d 38 (1960).
In Lotze, the developer sought to reserve a six-inch strip of land between its property and the adjacent land The Court declined to enforce the restriction, noting that "dedication to public use by plat is a common method and in its interpretation all doubts as to the intention of the owner are resolved most strongly against him." The Court further noted that "generally an open or vacant space may be held devoted to public use where from its position on and relation to the plat such appears to have been the intention of the owner."
Lotze at 751.
Id.
Admittedly, the Northfield plat contained the explicit notation that the 1 foot by 655 feet strip "is hereby reserved by the owner for future use." In his deposition testimony, the land surveyor, St. Clair, testified that Will told him to note the insulating strip on the plat because Will was upset that Ardelia Moore would not split the cost of paving the Northfield Subdivision development streets next to her property. Reservation for this purpose was disapproved by the Court in Lotze:
The Realty Company insists that to force this dedication upon it without requiring payment from Lotze allows him to be a `free-loader'; but to hold otherwise would make it possible for subdividers to become `free-loaders' by shouldering onto others a part of the cost of roadways running along their property. Under such conditions owners of land adjacent to subdivisions could be forced to pay paving costs or forced to sell their lands to the subdivider. The case at hand is illustrative of such a situation. Then too, to uphold the actions of the Realty Company would put a stamp of approval upon a practice which could produce havoc in the planning and developing of subdivisions. When an improvement is made upon property it may enhance the value of adjacent lands, but adjacent landowners should not be forced to pay for a public roadway built by a subdivider any more than they should be forced to pay for the shade contributed by a neighbor's trees. The subdivider builds upon his own initiative and for his own benefit and should not be allowed to require his incidental beneficiaries to pay for their unsought gains.
Lotze at 752.
In Stepp v. Webb, the Court clarified that:
We do not say a border strip cannot be reserved where there is a legitimate purpose therefor and it is clearly shown on the plat as reserved for private use. But where it is not so indicated and serves merely to separate the end of a dedicated public way therein from lands that would otherwise be adjacent, the public interest requires a presumption that such portion of the vacant space also is dedicated to the public.
Stepp at 39.
In summary, the law in this jurisdiction is that when an insignificant border is reserved along a development for no legitimate purpose, the reservation will be dedicated to public use by implication.
In conjunction with his memorandum in opposition to summary judgment, Will filed his own affidavit stating that reservation of the strip was to maintain a foliage barrier between his residential development and the adjoining farming operations. This contrasts with St. Clair's testimony that Will's original purpose for the strip was to punish the neighboring landowner for refusing to share the costs of street paving, which is not a legitimate purpose.
We conclude that Will's affidavit is insufficient to create a genuine issue of material fact. Viewing the evidence in the light most favorable to Will, the very narrowness of the strip belies his contention that the original purpose of the reservation was to create a foliage barrier. Moreover, Will has failed to identify any current legitimate purpose for the reservation. Under these circumstances, we conclude that as a matter of law, the bordering strip must be deemed as dedicated to the public.
Will further contends that the circuit court's decision violates various provisions of the Kentucky Constitution. However, Will does not provide any citation to the record on appeal demonstrating that this issue was raised before the circuit court. Our review of the record discloses that Will did not raise this issue in his complaint or in his response to the appellees' motion for summary judgment, and we are unable to locate any other instance in the record where the issue was raised. "It goes without saying that errors to be considered for appellate review must be precisely preserved and identified in the lower court." We will, accordingly, not address this issue on the merits.
Forester v. Forester, Ky.App., 979 S.W.2d 928, 931 (1998).
For the foregoing reasons, the judgment of the Bullitt Circuit Court is affirmed.
All Concur.