Opinion
NO. 2016-CA-000576-MR
07-06-2018
BETTY DAWSON APPELLANT v. VIRGINIA L. BOONE; CHERYL BOONE; JUSTIN STANFIELD; AND HANNAH J. STANFIELD APPELLEES
BRIEFS AND ORAL ARGUMENT FOR APPELLANT: William C. Rambicure Andrew R. Smith Lexington, Kentucky BRIEF FOR APPELLEES: Preston Scott Cecil Max Comley Frankfort, Kentucky ORAL ARGUMENT FOR APPELLEES: Preston Scott Cecil Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 11-CI-00580 OPINION
AFFIRMING IN PART AND REVERSING IN PART
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BEFORE: JOHNSON, JONES, AND KRAMER, JUDGES. JOHNSON, JUDGE: Betty Dawson appeals from the March 28, 2016 Order of the Franklin Circuit Court which found that an easement across the Dawson property is for the benefit of all of the current Boone Farm property. After reviewing the record in conjunction with the applicable legal authorities, we affirm in part and reverse in part.
BACKGROUND
In June 2010, Betty and Don Dawson received a letter from the Franklin County Planning & Zoning Commission informing them that the easement that ran over their property was to be dedicated and named Boone Pointe. In response, Dawson contacted her attorney who sent a letter to Cheryl Boone and Justin and Hannah Boone Stanfield ("Boones"), informing them to cease and desist using the easement and requested the Boones seek an alternative route to their homes. The easement in question dates to 1913, when J.A. Scott acquired a fifty (50) acre tract known as the Frank Church Farm ("Tract 6"). Scott at the time had also acquired a one-seventh undivided interest in an additional fifty (50) acres from Rebecca Peters known as Tract 7. Scott also owned additional property in the vicinity, but there is no evidence of record which shows exactly where the other land is located. The easement to the Scott property across the Colston property, now Dawson property, was for access to a right of way as granted in a 1913 Indenture from Henry and Jennie Colston to J.A. Scott. The relevant portion of the indenture states:
That for and in consideration of the fact that said Scott Claims a right of way from his Frank Church fram [sic], over and through the lands of said Colsto[n] ... [s]aid parties of the first part have sold, and by these presents
hereby convey, to said Scott, the right of way to and from said Church land, without let or hindrance, to his heirs and assigns forever.
Beginning in 1972, Virginia L. and C. Douglas Boone, now deceased, began purchasing numerous additional parcels of land, including Tract 6. Over the years, the Boones purchased approximately one-hundred fifty (150) acres, all adjoining, which comprise the current Boone Farm property. Tract 6 is part of the Boone Farm and is immediately adjacent to the Dawson property. Tract 6 derives its ingress and egress from the easement across the Dawson property by virtue of the 1913 grant. Tract 7 is adjacent to the back of Tract 6 and also uses the easement across the Dawson property for ingress and egress.
When Dawson purchased her fifty-eight (58) acres of property in 1991, she was told that the easement served only three houses and, as referenced in several maintenance agreements, an eight (8) foot right of way. Shortly thereafter, Doug Boone approached Dawson with a subdivided plat which showed a twenty (20) foot easement to his property. Dawson signed the plat and it was recorded.
In 2003, another subdivision plat was recorded involving a 2.47 acre tract on Tract 7, with a twenty (20) foot easement shown on the plat, across the Dawson property. Cheryl Boone built her home on the 2.47 acre tract. Dawson stated that she had no knowledge of the 2003 subdivision plat or of the construction of Cheryl Boone's home.
In 2009, a second tract of land of 1.817 acres, also on Tract 7, was deeded to Justin and Hannah Stanfield from Virginia Boone and is the property on which the Stanfields built their home. This plat of the minor subdivision also shows the easement of twenty (20) feet across the Dawson property, and was recorded in September 2009. Dawson also denies knowing about this plat or the construction of the Stanfield home.
After receiving the letter in 2010, Dawson filed suit alleging that the Boones had unlawfully expanded the scope of the easement for the Frank Church Property to now include all one hundred fifty (150) acres of the Boone Farm property. After a multiple day trial, the court entered Findings of Fact and Conclusions of Law on February 25, 2016. That order was amended on March 28, 2016, wherein the court found that the 1913 Indenture was an easement across the Dawson property and was intended to serve all one hundred fifty (150) acres of the Boone Farm, and that the easement consists of twenty (20) feet. Based upon the court's ruling Dawson filed this appeal.
STANDARD OF REVIEW
A court's ruling following a bench trial will not be set aside unless it is clearly erroneous. Due regard is given to the opportunity of the trial court to judge the credibility of the witnesses. Kentucky Rules of Civil Procedure ("CR") 52.01. A factual finding is not clearly erroneous if it is supported by substantial evidence, which is defined as evidence which has sufficient probative value to induce conviction in the mind of a reasonable person. Gosney v. Glenn, 163 S.W.3d 894, 898-99 (Ky. App. 2005). The trial court's conclusions of law, however, are reviewed de novo. Id.
ANALYSIS
In the present case we are dealing with an express easement, i.e., an easement created by a written grant with the formalities of a deed. Under Kentucky law, the rights created by an easement depend upon its classification. Loid v. Kell, 844 S.W.2d 428, 429-30 (Ky. App. 1992). To understand the current easement, it is necessary to go back to 1908 when Frank Church sold a fifty (50) acre tract of land to G.W. Lewis, Tract 6, who in turn sold Tract 6 to J.A. Scott. Prior to 1913, J.A. Scott acquired an undivided 1/7 interest in Tract 7, which consists of 50 acres directly adjacent to Tract 6.
In 1913, Henry Colston, predecessor to Dawson, executed an indenture of record, wherein he granted a right of way to J.A. Scott. It states:
That for and in consideration of the fact that said Scott Claims a right of way from his Frank Church fram [sic], over and through the lands of said Colston, along the ridge to the Colston School house, where the present roadway now runs, along the line of Lee French, and in consideration of the fact that said Scott has heretofore subscribed twenty five ($25.00) dollars for the new turnpike road to the gate to said School House, and for twenty five ($25.00) dollars, addition to said subscription, in hand paid, receipt of which is hereby acknowledged, said parties of the first part have sold, and by these presents hereby convey, to said Scott, the right of way to and from said Church land, without let or hindrance, to his heirs and assigns forever.
Neither party disputes that the easement of 1913 grants access to Tract 6, but Dawson contends that only Tract 6 has right of way access, based upon the language that says, "[a] right of way from his Frank Church farm." Dawson contends that under the plain language of the indenture, only the Frank Church farm is given access. However, the record shows that at the time the easement was granted, J.A. Scott owned more than just Tract 6. In addition to Tract 6, in 1909, Scott obtained an undivided 1/7 interest in Tract 7. Tract 7 is directly adjacent to Tract 6. Tract 7 is where the Boone and Stanfield homes now set.
The indenture granted to J.A. Scott, his heirs and assigns, an easement over the land of Colston, now Dawson, for use of the Scott property, which at that time was Tract 6 and Tract 7. The court found that the language of "from the Frank Church property" was not intended as restrictive, but rather a reference to where the easement began and we concur. Having reviewed the record, we conclude that the court's determination was based upon substantial evidence in the record and therefore, we discern no error in that ruling.
However, the court then determined that the easement should now be read to grant Boone access to all the additional property of the current Boone farm, not just the original property Scott owned at the time the easement was granted. The court erred in this determination.
The record shows that at the time Scott obtained the easement in 1913, he did not own all the property that Boone currently owns. He owned all of Tract 6, and an undivided 1/7 interest in Tract 7. Kentucky law is clear that an easement holder may not expand the use of the easement. Sawyers v. Beller, 384 S.W.3d 107, 111 (Ky. 2012). Furthermore, the Kentucky Supreme Court held:
[A]n easement for the benefit of a particular piece of land cannot be enlarged and extended to other parcels of land, whether adjoining or distinct tracts to which the right is not attached. The purpose of this rule against enlargement of an easement is to "prevent and increase of the burden upon the servient estate." Just as an easement holder may not expand the use of the easement, a grantor is likewise prohibited from interfering with the dominant estate's use of the easement.Kircheimer v. Carrier, 446 S.W.3d 224, 232 (Ky. 2014) (citations omitted).
The evidence in this matter only supports a holding that Boone, who is the successor in title to Scott, is entitled to the use of the easement for Tracts 6 and 7, but not the entire Boone farm. The grant of an easement over the Dawson property must be as reasonable and as little burdensome to the landowner as the nature and purpose of the easement will permit. Horky v. Kentucky Utilities Co., 336 S.W.2d 588, 589 (Ky. 1960). While the language is not restrictive, Kentucky law limits its application only to the property Scott owned at the time of the execution of the 1913 indenture. An easement cannot be enlarged and extended to the other parcels of land now owned by Boone. Kircheimer 446 S.W.3d at 232. By determining that the easement over the Dawson property was for the use and benefit of all the Boone farm, the court enlarged and extended the use of the easement, placing a greater burden on the subservient, Dawson property. We therefore reverse that part of the court's ruling, and limit the use of the easement to only those properties Scott owned at the time of the original grant.
CONCLUSION
Based upon the foregoing, we affirm in part and reverse in part the order of the Franklin Circuit Court.
KRAMER, JUDGE, CONCURS.
JONES, JUDGE, CONCURS IN RESULT ONLY. BRIEFS AND ORAL ARGUMENT
FOR APPELLANT: William C. Rambicure
Andrew R. Smith
Lexington, Kentucky BRIEF FOR APPELLEES: Preston Scott Cecil
Max Comley
Frankfort, Kentucky ORAL ARGUMENT FOR
APPELLEES: Preston Scott Cecil
Frankfort, Kentucky