Opinion
NO. 2019-CA-001119-MR
04-17-2020
JAMES M. REID and APRIL D. REID APPELLANTS v. ELIZABETH JANE BROWN and RAY DEWAYNE BROWN APPELLEES
BRIEFS FOR APPELLANTS: Harry L. Mathison Henderson, Kentucky BRIEF FOR APPELLEE, ELIZABETH JANE BROWN: J. Christopher Hopgood Henderson, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE KAREN LYNN WILSON, JUDGE
ACTION NO. 17-CI-00585 OPINION
AFFIRMING BEFORE: GOODWINE, JONES, AND KRAMER, JUDGES. KRAMER, JUDGE: James and April Reid appeal from a June 12, 2019 order of the Henderson Circuit Court, in which the circuit court summarily determined that their neighbors, Elizabeth and Ray Brown, have a quasi-easement traversing their property. Upon review, we affirm.
FACTUAL AND PROCEDURAL HISTORY
The Reids and Browns live on neighboring tracts located at the end of a one-lane county road (Conley-Thomas Road) in Henderson County, Kentucky. Their respective tracts were originally part of a larger tract divided by common grantors, George and Elizabeth Couch. The Couches formerly resided in a two-story log cabin located on what is now the Browns' tract ("lot 1"). The Couches then moved to the location of what is now the Reids' tract ("lot 2"); severed lot 1 and sold it to Robert Klueppel on November 16, 1990; and ultimately sold lot 2 to Michael and Pamela Wilson on April 3, 1996. Afterward, the Reids purchased lot 2 from the Wilsons on April 28, 2006. As to lot 1, Klueppel sold it to Robert and Penny Royster on March 14, 1994; the Roysters sold it to Robert and Lee Cooper on May 24, 2001; Wells Fargo Bank later acquired it on December 22, 2016, following foreclosure proceedings against the Coopers; and the Browns later acquired it from Wells Fargo on March 27, 2017. Currently, the Browns reside in the same two-story log cabin originally owned by the Couches.
Appellee Elizabeth Brown purchased lot 1 from Wells Fargo on March 27, 2017. On the same date she deeded the property to herself and Ray as joint tenants with rights of survivorship.
A plat map of record purports to delineate the boundaries of their respective properties; and, roughly described, the Browns' 2.014-acre tract (lot 1) resembles a slightly uneven rectangle; the Reids' 4.761-acre tract (lot 2) vaguely resembles a large, lowercase "q" straddling lot 1 from above and to its right; and Conley-Thomas Road skirts a fifty-foot area at the bottom-right corner of lot 1 before merging with a roadway that runs up the middle of the low-hanging part of lot 2's roughly "q"-shaped boundary.
Keeping the above in mind, the dispute in this case is over how the Browns are entitled to connect their property with Conley-Thomas Road. As discussed, the Browns reside in what was formerly the Couches' log cabin. Since purchasing lot 1, they have used a paved, semicircular driveway extending outward from the front of their cabin to access Conley-Thomas Road. The upper extension of their driveway (what the Browns refer to as the "north entrance") joins perpendicularly with a graveled section of the roadway. Continuing northward perhaps fifty feet or so from that entrance, the roadway curves to the left at a more widely graveled area and then continues in that direction for possibly another hundred more feet until ending at the Reids' home. But, continuing southward from that entrance for a distance of possibly a hundred feet the gravel roadway becomes paved, and (immediately or soon thereafter) becomes Conley-Thomas Road.
The lower extension of the paved driveway (what the Browns refer to as the "south entrance") joins perpendicularly with a section of the roadway that is from all appearances indistinguishable from any other section of Conley-Thomas Road. Specifically, Henderson County undisputedly paved this section of road; this paved section extends northward from what is undisputedly Conley-Thomas Road, and continues northward about fifteen feet beyond from where it meets with the Browns' south entrance; and it becomes the aforementioned graveled roadway at a point where a county road sign conspicuously states: "END OF COUNTY MAINTENANCE."
The problem, according to the Reids, is that the upper and lower extensions of the Browns' semicircular driveway do not connect with Conley-Thomas Road. Rather, in the Reids' view, the semicircular driveway does not connect with Conley-Thomas Road at all, but only connects with their property (i.e., the low-hanging part of their roughly "q"-shaped boundary).
With that said, the controversy in this matter began in the late summer or early fall of 2017, when the Browns returned from church camp to discover that the Reids had strung barbed wire fencing between what the Reids regarded as their respective property lines, including across both the south and north entrances of the Browns' semicircular driveway. This prevented any part of the semicircular driveway from accessing Conley-Thomas Road. On eight or nine of the fence posts, the Reids had also placed signs facing the Browns' cabin that stated: "PRIVATE PROPERTY NO TRESPASSING." Additionally, the Reids had installed (but had not yet shut) a twenty-foot wide, wrought-iron gate just a few feet in front of where the south entrance of the Browns' driveway joined with what appeared to be Conley-Thomas Road - and thus approximately fifteen feet in front of where Henderson County had placed its "END OF COUNTY MAINTENANCE" sign.
The Browns nevertheless accessed their property by removing the barbed wire fencing strung across their south entrance. Subsequently, they obtained a restraining order in Henderson Circuit Court to prevent the Reids from either replacing that fencing or shutting the wrought-iron gate; and, they filed suit against the Reids and sought an injunction, claiming the fencing and gate unlawfully interfered with their rights of access to Conley-Thomas Road. The Browns asserted theories of easement by necessity; easement by prescription; quasi-easement; and further asserted that the section of roadway fronting their semicircular driveway qualified as a public road.
As alternative bases for affirming the circuit court, the Browns assert they are also entitled to their easement based upon these other legal theories. Considering our disposition of this matter, however, we decline to address them.
On April 10, 2018, the circuit court held a three-hour hearing with respect to the Browns' request for a temporary injunction, and several witnesses provided testimony. To summarize, Dewayne Goins, a former local resident, testified that he had frequently visited a prior owner of the property before it was conveyed to the Couches and that he needed to use the semicircular driveway on each occasion to turn around on Conley-Thomas Road. Gary Snow, another former local resident, stated in an affidavit that thirty-two years ago he had worked with a company that picked up trash along Conley-Thomas Road and that the semicircular driveway existed at that point in time.
Dennis Branson, the Henderson County Surveyor, testified the semicircular driveway that provided lot 1 access to Conley-Thomas Road was obvious to anyone viewing the property; aerial photography demonstrated it had existed in the same location since at least 1989 (i.e., before the Couches subdivided their property into lots 1 and 2); and that Henderson County, according to its county road maintenance map, regarded the section of roadway fronting the Browns' semicircular driveway (including the graveled portion) as part of the county's right-of-way.
William Hubiak has been the Henderson County Engineer for over twenty years and is tasked with county road maintenance. He testified Henderson County understands Conley-Thomas Road extends at least fifteen feet beyond where the Reids placed their gate, up to where Henderson County had stopped paving it over fifteen years earlier and placed its "END OF COUNTY MAINTENANCE" sign. Hubiak testified that because Conley-Thomas Road is a one-lane road, the county's emergency services vehicles cannot remove snow from the road or turn around without using the Browns' semicircular driveway and the gravel roadway fronting it; and that the county's emergency services vehicles regularly use both - and have a right-of-way over both - for those purposes. He testified that when Reid was installing the gate, he informed Reid that "should that gate become closed during a snow event, and our equipment can't get back there and for emergency vehicle purposes, that would be obstruction and we would have the right to go ahead and push it down."
Robert Royster was called as a witness. As indicated, he was another of the Browns' predecessors-in-title and owned lot 1 from March 14, 1994, until May 24, 2001. Royster testified that while he also lived in what was formerly the Couches' (and currently the Browns') log cabin, he used the semicircular driveway to access Conley-Thomas Road every day without any objection from the Couches, who then resided on lot 2. Further, he testified he split the cost with the Couches of graveling the roadway that fronted the semicircular driveway, and beyond where the semicircular driveway extended - all the way to where, as described above, the gravel roadway curves to the left at the more widely graveled area. He testified that he and his wife had raised school-aged children while living at lot 1 and that the purpose of the more widely-graveled area located further down the roadway fronting their driveway was to allow space for the school busses to turn around and go back the opposite direction on Conley-Thomas Road.
James Reid also testified that he and his wife have been aware of the semicircular driveway on lot 1 since they moved to lot 2 on April 28, 2006. He testified that sometime between April and June of 2006, the Coopers (another of the Browns' predecessors in title) paved the semicircular driveway, which had formerly been gravel. He testified that the Coopers had only intermittently resided on lot 1 between 2006 and 2017, and had vacated the property for a period of two or three years during that time; returned for about eight months; left again; and that the log cabin on lot 1 had stood vacant for another four or five years until the foreclosure proceedings concluded against the Coopers and the Browns purchased lot 1 on March 27, 2017, from Wells Fargo Bank. But, he conceded that when the Coopers lived in the log cabin, they, too, probably used the semicircular driveway as their exclusive means of accessing Conley-Thomas Road.
Indeed, James Reid rebutted none of the testimony described above regarding how the roadway and semicircular driveway had been used; how long they had been used by the county and lot 1 owners; or how obvious it had been. Rather, his claim of exclusive ownership of the roadway fronting the semicircular driveway derived entirely from his interpretation of the deeds and plat map discussed above. Similarly, he added that because the plat map indicated there was a fifty-foot area of lot 1 which overlapped with a portion of Conley-Thomas Road in front where he had placed his new wrought-iron gate, the Browns were precluded from claiming an easement across his roadway because such an easement was not "absolutely" necessary.
Reid also testified that prior to installing the barbed wire fencing and wrought-iron gate in the late summer or early fall of 2017, he had sent a "cease and desist" letter to the Browns, the Browns' realtor, and Wells Fargo Bank on January 17, 2017, stating: (1) his belief, according to his interpretation of the deeds and plat map describing lots 1 and 2, that he owned the roadway fronting the semicircular drive; and (2) his directive, according to his claim of ownership, for no one to ever use the roadway again.
Lastly, Ray Brown testified. Like the county officials, he believed the south entrance of his semicircular driveway connected with a county road, not the Reids' property. Like his predecessors-in-title (i.e., Klueppel and Royster), he testified that, since purchasing lot 1, he and his wife had used the semicircular driveway and the roadway fronting it as the exclusive means of accessing their property from Conley-Thomas Road. Further, he testified the fifty-foot area of lot 1 which overlapped with a portion of Conley-Thomas Road in front where Reid had placed his new wrought-iron gate was not a reasonable means of accessing lot 1, explaining: "I don't know how it would be done. The pitch there, it's too steep and the ground is too soft, it's undermined by moles."
On May 23, 2018, the circuit court entered findings of fact, conclusions of law, and an order in favor of the Browns, granting them a temporary injunction to allow them access to Conley-Thomas Road from the section of roadway fronting the north and south entrances of their semicircular driveway. Specifically, the circuit court determined the evidence supported a substantial likelihood that the Browns, as owners of lot 1, would prevail against the Reids on a quasi-easement theory.
Afterward, discovery progressed. On April 16, 2018, the Browns produced an affidavit from Pamela Wilson, one of the Reids' immediate predecessors-in-interest. As discussed, Wilson resided on lot 2 from April 3, 1996, through April 28, 2006. She averred that during the years she and her husband resided at lot 2, "the neighbors at 12530 Conley Thomas Road, Henderson KY (Robert and Lee Cooper), used the driveway on their property from the Conley Thomas Road as their only access to their property. This use was open, continuous, frequent and regular."
Wilson's affidavit indicates it was made on personal knowledge about such facts as would be admissible in evidence; that Wilson was competent to testify; and from the acknowledgment of the jurat, Wilson clearly swore to the writing before a notary public. Nevertheless, the Reids appear to take umbrage with Wilson's affidavit, pointing out that her affidavit states it was "acknowledged" rather than "subscribed and sworn to" before a notary public. To the extent that the Reids are claiming Wilson's affidavit was therefore improper, however, they are incorrect. Affidavits with far less compliance with Kentucky Rule of Civil Procedure (CR) 56.05 have been deemed proper and admissible. See, e.g., Alvey v. Welker, 655 S.W.2d 503, 505 (Ky. App. 1983).
Additionally, the parties took deposition testimony from Robert Klueppel on June 21, 2018. As indicated, Klueppel was the first to own lot 1 after Couch severed it from his larger tract; he owned lot 1 from November 16, 1990, until March 14, 1994; and he also lived in what was formerly the Couches' log cabin. In sum, Klueppel acknowledged his deed from the Couches made no mention of any easement providing access to Conley-Thomas Road and that the associated plat map did not indicate any easement existed. But, he testified that he exclusively and continuously used the semicircular driveway and the section of gravel roadway fronting it as his exclusive and continuous means of ingress and egress from Conley-Thomas Road while he resided at the property; and the Couches had never raised any objection when he did so.
Citing the evidence and reasserting their various easement theories discussed above, the Browns moved for summary judgment. In response, the Reids opposed their motion by once again relying entirely upon the written deed and plat associated with lot 1. And, as noted, the circuit court ultimately resolved this matter in favor of the Browns based on their quasi-easement theory. This appeal followed.
STANDARD OF REVIEW
Pursuant to CR 56.03, summary judgment shall be granted if "the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The purpose of CR 56.03 is to terminate litigation where there are no genuine issues of material fact. "Instead of deciding an issue of fact, the trial court reviews the evidence to determine whether a real issue of fact exists. And in performing this review, the trial court must view the evidence through a lens colored in favor of the party opposing summary judgment." Kirby v. Lexington Theological Seminary, 426 S.W.3d 597, 604 (Ky. 2014) (citation omitted).
The party moving for summary judgment bears the initial burden of showing that no genuine issue of material fact exists, and then the burden shifts to the party opposing summary judgment to present "at least some affirmative evidence showing that there is a genuine issue of material fact for trial." Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001) (quoting Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 482 (Ky. 1991)). When reviewing a motion for summary judgment, the trial court must be ever mindful of its very limited role, which is to determine whether disputed material facts exist, not to decide factual disputes. See Shelton v. Ky. Easter Seals Soc'y, Inc., 413 S.W.3d 901, 905 (Ky. 2013).
On appeal, we consider the evidence of record in the light most favorable to the non-movant and further consider whether the circuit court correctly determined that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). Because summary judgment involves no fact finding by the trial court, we accord no deference to the trial court's decision; our review is de novo. See Davis v. Scott, 320 S.W.3d 87, 90 (Ky. 2010).
ANALYSIS
On appeal, the Reids argue that in their view the existence of any easement should be discerned from the four corners of the deeds and plat associated with lots 1 and 2. To that end, they point out once again that no deed of record specifically refers to or recites any consideration relating to any easement traversing their tract and the Browns' tract; and that the plat map associated with the Browns' tract likewise identifies no easement. Due to the lack of any express references to such an easement, they argue, a reasonable jury could infer that the original grantors (the Couches) and grantee (Klueppel) never intended any easement to exist. Further, they note that the plat map identifies a fifty-foot area on the boundary of the Browns' tract fronting Conley-Thomas Road; and they assert that because this area might possibly enable the Browns to construct a new driveway to that county road, the Browns are precluded from contending it is "absolutely necessary" to have an easement over their property instead.
To be sure, what the Reids point out would be material for purposes of summary judgment if all easements were required to be in writing or were otherwise required to be "absolutely necessary." But, they are not. "Generally, an easement may be created by express written grant, implication, prescription or estoppel." Gosney v. Glenn, 163 S.W.3d 894, 899 (Ky. App. 2005) (citation omitted). As discussed, the circuit court determined the Browns maintained a quasi-easement. Unlike an express easement, a quasi-easement is not created by a written grant with the formalities of a deed, but instead arises through implication from a prior existing use of land. Indeed, the Reids' insinuation that a reasonable jury could infer the Couches - the original grantors - had no intention of conveying an unwritten easement because they did not convey a written easement is nothing more than an irrelevant exercise of circular logic. Furthermore, unlike an easement by necessity - which has a requirement of absolute necessity that is typically defeated if any portion of the dominant estate borders a public road - a quasi-easement is only required to be "reasonably necessary to the enjoyment of the quasi-dominant" estate.
See Sawyers v. Beller, 384 S.W.3d 107, 111 (Ky. 2012) (citation omitted) ("An express easement is created by a written grant with the formalities of a deed."); Carroll v. Meredith, 59 S.W.3d 484, 489 (Ky. App. 2001) (explaining a quasi-easement by implication primarily "arises from a prior existing use of land").
See Carroll, 59 S.W.3d at 491-92 (citations omitted) (explaining "courts applying the strict necessity standard have rejected the creation of an easement by necessity to a portion of a claimant's property where any part of the property abuts or has direct access to a public road[,]" and that Kentucky applies the "strict" necessity standard).
Kreamer v. Harmon, 336 S.W.2d 561, 563 (Ky. 1960). --------
"Because a quasi-easement involves the intentions of the parties, the date the unity of ownership ceases by severance is the point of reference in ascertaining whether an easement has been imposed upon adjoining land." Carroll, 59 S.W.3d at 490 (footnote omitted). Thus, to prove a quasi-easement, 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.Cole v. Gilvin, 59 S.W.3d 468, 476 (Ky. App. 2001) (footnote omitted).
Factors relevant to establishing a quasi-easement include:
(1) whether the claimant is the grantor or the grantee of the dominant tract; (2) the extent of necessity of the easement to the claimant; (3) whether reciprocal benefits accrue to both the grantor and grantee; (4) the manner in which the land was used prior to conveyance; and (5) whether the prior use was or might have been known to the parties to the present litigation.Id. at 477 (quoting Bob's Ready to Wear, Inc. v. Weaver, 569 S.W.2d 715, 719 (Ky. App. 1978)).
In addressing these factors in the relevant part of its June 12, 2019 order, the circuit court explained:
The parties' two tracts were separated from common ownership of George and Elizabeth Couch. The plaintiffs are in a position of a grantee of the Couches (as are the defendants). According to the evidence at the hearing for a temporary injunction, the driveway was there before the Browns' tract was severed, and had been used for that purpose for many years since then. This driveway was open and obvious when the Reids bought their tract. Further, the defendants benefit from others' use of this driveway, as the County uses it to turn its snow plow around when it clears Conley-Thomas Road.
Finally, the plaintiffs have offered evidence that the use of the driveway is reasonably necessary to the enjoyment of their property. Meredith at 488. While strictly speaking it may be possible for the Browns to construct another driveway on their property, the testimony was that this would be difficult given the contours and condition of the property and could not be undertaken without disproportionate effort and expense. Knight v. Shell, Ky. 233 S.W.2d 973, 976 (1950).
After further consideration, the Court believes that, even viewing the evidence in the manner most favoring the defendants, summary judgment would be appropriate on the issue on an implied quasi-easement. Steelvest. The Plaintiffs have established all the elements of an implied quasi-easement. The driveway was used by the dominant tract before for years before the Reids purchased their tract and before the tracts were [in] fact separated. This driveway is beneficial to both tracts and reasonably necessary for the Browns to enjoy their property. None of the evidence propounded by the defendants refutes the plaintiffs' claim. Blackstone Mining Co. v. Travelers Ins. Co., Ky., 351 S.W.3d 193, 198 (2010).
In short, the circuit court held that the Browns produced affirmative evidence establishing all the requirements for recognizing a quasi-easement; and that in response to their motion, the Reids produced nothing that refuted the Browns' claim or otherwise created a material issue of fact for trial.
Upon review, we agree with the circuit court's analysis and see little reason to expound upon it. Summary judgment was proper, and we accordingly affirm.
ALL CONCUR. BRIEFS FOR APPELLANTS: Harry L. Mathison
Henderson, Kentucky BRIEF FOR APPELLEE,
ELIZABETH JANE BROWN: J. Christopher Hopgood
Henderson, Kentucky