Opinion
NO. 2014-CA-000691-MR
04-03-2015
HARVEY LOWE; JOHN LOWE; AND ROY LOWE APPELLANTS v. ROBERT KEMP; DEBRA KEMP; DANIEL LEE MEDLIN, JR.; AND SAMANTHA NICOLE COREY APPELLEES
BRIEFS FOR APPELLANTS: W. Edward Skees New Albany, Indiana BRIEF FOR APPELLEES: Gilbert E. Holland Barbourville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KNOX CIRCUIT COURT
HONORABLE THOMAS L. JENSEN, JUDGE
ACTION NO. 12-CI-00308
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; COMBS AND MAZE, JUDGES. ACREE, CHIEF JUDGE: The issue before us is whether the Knox Circuit Court erred in finding no legal basis that would entitle the Appellants (Harvey Lowe, John Lowe, and Roy Lowe) to an easement across land currently or previously owned by Appellees (Robert Kemp, Debra Kemp, Daniel Lee Medlin, Jr., and Samantha Nicole Corey). We affirm.
I. Facts and Procedure
In 1975, appellant Roy Lowe inherited unimproved property in the hills of Knox County near Kentucky Route 6. His property abuts a country club's golf course. When the country club purchased its land in 1962, it eliminated the "old road" - and only road at the time - servicing Roy's land. Roy testified he then had to walk through the golf course to reach his property. The tract does not have direct access to any public road.
Roy inherited his property from his parents. He utilized the land prior to obtaining legal ownership in 1975.
In 1991, Roy signed a lease agreement with a coal company for the purpose of conducting strip-mining operations. The coal company, as required by the lease and after securing the necessary approvals, constructed a two-mile coal haul road that leads from Kentucky Route 6 to Roy's property. The coal haul road traverses land belonging to several other persons, including the parcel then owned by appellees Robert and Debra Kemp; the Kemps later sold that parcel to appellees Daniel Medlin, Jr., and Samantha Corey. The coal company ceased operations in 1996 and abandoned the coal haul road.
When first created, the road crossed property owned by Paul Mack Gray, Edward and Lena Cooper, James and Elisha Havens, and the Kemps. The Appellants obtained easements from the Havens and Coopers, the former by means of a default judgment and the latter by written agreement offered on the day of trial. It also appears, though the record does not confirm, that Gray granted Appellants a written express easement. As will be discussed in greater detail later in this Opinion, the Kemps sold their property to Medlin and Corey in 2012.
In 2003, Roy constructed a small hunting cabin on his property. He transported the building materials along the coal haul road. The structure lacks running water, electrical utilities, and a septic system. It is currently in a state of disrepair. Roy never intended the structure to be his permanent residence.
In 2004 or 2005, Roy purchased an adjacent parcel of land, which he subsequently sold to his nephew, Billy Ray Lowe, in 2008. In 2009, Billy Ray built his own small lodge on his land. Like Roy, Billy Ray used the coal haul road to haul the building materials - including trusses and dry wall - to his property. Like Roy's cabin, Billy Ray's lodge lacked running water and other utilities, but it was wired for electricity produced by a generator. Billy Ray never intended to live in the cabin; he built it for recreational use. In 2011, he sold the parcel to his cousin, appellant Harvey Lowe. This cabin is also now in a state of disrepair.
In 2010 or 2011, Medlin removed a culvert or "drainage tile" that ran under the coal haul road rendering it impassable. Upset, on June 26, 2012, the Appellants filed a petition for declaration of rights and easement against the Kemps and other landowners over whose property the coal haul road passed. Unbeknownst to the Appellants, the Kemps had sold their property to Medlin and Corey on March 9, 2012; the deed was not recorded until September 17, 2012. Appellants amended their petition in February 2013, naming Medlin and Corey as defendants.
A bench trial was held on March 24, 2014.
Between the filing of the petition and the bench trial, the parties engaged in numerous bitter discovery disputes, mostly aimed at Appellees' failure to timely respond to discovery requests. While disturbing, these events are largely irrelevant to the issues before us. To the extent they become relevant, we will discuss them.
Roy testified that he intentionally negotiated with the coal company to have the coal haul road kept open as a permanent road connecting his property to Kentucky Route 6. He started using the coal haul road in 1996 to access his property. There is no other way, Roy declared, to reach his land.
Three small cabins owned by club members are located on the country club's property. A small driveway provides access to those cabins. Though the end of the driveway is approximately one mile from Roy's cabin, Roy testified it is not feasible, due to the topography, to build a road connecting that driveway to the coal haul road. In any event, Roy testified the country club denied his request for access through the golf course.
Roy Powell, superintendent of the country club, confirmed Roy's testimony, in part. Powell acknowledged a driveway serves as primary access to the country club's cabins. That driveway is gated, and ends at the third cabin. A steep hill separates the driveway and Roy's land. Powell testified it would be possible to construct a passable thoroughfare connecting the driveway and the coal haul road, but declared it an undesirable option. The country club does not allow any of the Lowes to cross the golf course to reach their land.
Roy testified that, at some point, he asked Medlin to use the coal haul road and Medlin responded, "Use it all you want." Similarly, Billy Ray testified that, prior to or shortly after he purchased his property, he and Roy asked each of the Appellees if they could use the coal haul road and that Medlin responded, "Use the road all you want, just do not widen it." According to Roy and Billy Ray, Medlin watched them transport building materials along the coal haul road in 2003 and 2009. None of the landowners, including Medlin, took any steps to prevent them from building their cabins. Neither Roy nor Billy Ray would have built their respective cabins absent suitable means of access.
Billy Ray also testified that, when the coal haul road became impassable, he resorted to an alternate passway that runs near the Lowe family cemetery. Roy and Billy Ray jointly paid for a dozer to clean up bushes and trees along the cemetery road to render it passable. The cemetery road runs partially on Medlin's land. At some point a gate was erected across that road preventing access, though no one has claimed responsibility for that act.
Harvey Lowe testified that, in 2005, he, Roy, and Billy Ray purchased another adjacent parcel from James and Heather Golden, and Harvey started using the coal haul road at that time. He testified that he did so because his uncle (Roy) had obtained permission from all the landowners. The coal haul road was passable, in good shape, and looked used in 2005. Harvey testified there are no other public roads touching his property, and he would not have purchased the land if it lacked access. Harvey described the general topography as mountainous, steep, and rocky. He confirmed that, at some point, he used the cemetery road to reach his property, but that option was later foreclosed by the erection of a gate.
Medlin was the only appellee to testify. He first claimed to have purchased his parcel in 2000 or 2001. He later clarified that he took possession of the land in 2003, and has resided there ever since. He explained: when the land was first purchased, he and the Kemps informally split the parcel down the middle. The Kemps got the back and he got the front. The land was put in the Kemps' name, because it was the only way he (Medlin) could acquire the necessary loan. Medlin admitted he did not become the owner of record until he formally purchased the land from the Kemps in March 2012.
Medlin admitted he gave the Lowes permission to use the coal haul road, but limited its duration to six months. Medlin testified Roy told him they (the Lowes) were suing the country club to re-obtain access via the old country road. Accordingly, Medlin claims he told Roy: "I don't care a bit if you all use [the coal haul road,] but you can't use it all the time, just until you get your right away [sic] established." It is clear, however, that Medlin let them use the road longer than six months.
Medlin testified he was forced to remove the drainage tile by a state actor upon complaints of flooding. He denied blocking the cemetery road, denied granting the Appellants an easement across his land, and denied allowing the public to use the coal haul road. He stated his reasons for not wanting the coal haul road used by the Appellants. First, Medlin was concerned about the proximity of the road to his house; it passes within thirty feet of his stepdaughter's bedroom window. Second, Medlin stated that the coal haul road cuts through the middle of his land, which is narrow in stature, rending it useless, and thwarting his plans to build another residence on the parcel. Third, Medlin thought it possible for the Appellants to access their land by means of another public road - Helton Hollow Road. Medlin testified Helton Hollow Road lies over a ridge much closer to the Appellants' property than Kentucky Route 6, and thought it a simple task to connect Helton Hollow Road to the coal haul road. On recall, Roy testified it was not possible to connect Helton Hollow Road to the coal haul road. He also stated, without contradiction, that to connect the coal haul road to Helton Hollow Road would require a passway across land privately owned by others.
Medlin was aware of the Appellants' cabins when he formally purchased his parcel in 2012. He also ran a title search at that time, and found no mention of a passway across his land. Finally, Medlin testified that he would not object to the Appellants' use of the cemetery road to access their property.
The circuit court heard closing arguments before taking the matter under submission. On March 31, 2014, the circuit court entered Findings of Fact, Conclusions of Law, and a Final Judgment declaring the Appellants had failed to satisfy their burden of proof and granting judgment in favor of the Appellees. The Appellants responded with a motion to alter, amend, or vacate the judgment, which the circuit court denied. This appeal followed.
Appellants based this motion on Kentucky Rules of Civil Procedure (CR) 60.02. However, the substance of the motion uses language from CR 59.05. In either event, the circuit court denied the motion, and the Appellees make no issue of that discrepancy before this Court.
Additional facts and procedure will be discussed as necessary for our review.
II. Standard of Review
This case was tried without a jury, the circuit court acting as fact-finder. An appellate court will not set aside a circuit court's findings of fact unless those findings are clearly erroneous - that is, unsupported by substantial evidence. CR 52.01; Carroll v. Meredith, 59 S.W.3d 484, 489 (Ky. App. 2001). Substantial evidence is evidence "when taken alone or in light of all the evidence, has sufficient probative value to induce conviction in the mind of a reasonable person." Gosney v. Glen, 163 S.W.3d 894, 898 (Ky. App. 2005).
Legal questions, however, "are reviewed anew by this Court." Daniels v. CDB Bell, LLC, 300 S.W.3d 204, 210 (Ky. App. 2009). To be precise, we review de novo the circuit court's application of the law to the facts. Gosney, 163 S.W.3d at 898.
Our review of evidentiary matters is limited to a determination of whether the circuit court abused its discretion. Hashmi v. Kelly, 379 S.W.3d 108, 111 (Ky. 2012). "An abuse of discretion will only be found when a trial court's decision is arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Bell v. Bell, 423 S.W.3d 219, 222 (Ky. 2014).
III. Analysis
Appellants fault the circuit court for failing to recognize that they are entitled to a passway across the Appellees' land. They identify three different judicial doctrines - easement by prescription, by estoppel, and by necessity - each of which, Appellants argue, gives rise to their right to an easement. Appellants also assert the circuit court abused its discretion when it admitted Medlin's improper opinion testimony.
"Generally, an easement may be created by express written grant, implication, prescription or estoppel." Gosney, 163 S.W.3d at 898. However, easements are not favored under the law for they "deprive the owner of the use of his own property or burden it with a servitude[.]" Ben Snyder, Inc. v. Phoenix Amusement Co., 309 Ky. 523, 525, 218 S.W.2d 62, 63 (1949). The party claiming the right to an easement does not have an easy task. Cary v. Pulaski Cnty. Fiscal Court, 420 S.W.3d 500, 509 (Ky. App. 2013). "Passways, being, like all servitudes, limitations of, or deductions from, another person's ownership and dominion over his land, should be clearly established by the proof before the landowner should thus be deprived of his property." Godman v. Jones, 180 Ky. 217, 202 S.W. 662, 665 (1918).
With these preliminary observations concluded, we turn to the Appellants' specific claims of error.
A. Easement by Prescription
The circuit court by-passed the prescriptive easement issue, finding "[Appellants] did not argue they obtained their easement by prescription." (R. at 270). In their petition, as amended, Appellants requested "an easement for the roadway across the [Appellees'] land, including but not limited to, an express easement, quasi easement, implied easement, easement by estoppel, and/or easement by necessity." (R. at 247). "Prescriptive easement" is notably absent from this list. In their prayer for relief, Appellants simply requested a "permanent easement permitting use of the road across [Appellees'] land for utilities, ingress, and egress to their property." (R. at 248). Appellants briefly touched upon a prescriptive easement in their closing argument, first noting that the Appellants had been "operating under a claim of right to this coal [haul] road the entire time since 1996," and also declaring the Appellants had been crossing the land for well over fifteen years starting in 1996 and therefore "had been there the prescribed time to get an easement by prescription."
It is easy to see how the circuit court concluded that Appellants failed to present a prescriptive easement claim in light of the declaration petition and Appellants' mere passing reference to a prescriptive easement at the close of trial. However, we believe Appellants' petition is broad enough to include a prescriptive easement claim which they do argue during closing arguments. Accordingly, we agree with Appellants that it was error for the circuit court to summarily deny their request.
The circuit court's factual findings render remand on this issue unnecessary. The circuit court, after weighing all the evidence, found Medlin's testimony most credible and found that his verbal grant of permissive use of the coal haul road to be temporary - only six months. This fact, combined with other undisputed testimony, makes establishment of a prescriptive easement impossible.
The law of prescriptive easements is ancient in origin and derives generally "from the principles underlying adverse possession of property interests." Cole v. Gilvin, 59 S.W.3d 468, 475 (Ky. App. 2001). "[A] prescriptive easement can only be acquired by actual, hostile, open and notorious, exclusive, and continuous possession of the property for the statutory period of fifteen years." Poe v. Gaunce, 371 S.W.3d 769, 774-75 (Ky. App. 2011) (emphasis added); Columbia Gas Transmission Corp. v. Consol of Kentucky, Inc., 15 S.W.3d 727, 730 (Ky. 2000).
As declared by one learned authority, "[h]ostility is the very marrow of adverse possession." 3 Robert W. Keats, et al., Kentucky Practice: Methods of Practice § 5.3 (3rd ed. 1989). "To say that possession is hostile should mean nothing more than that it is without permission of the one legally empowered to give possession, usually the owner." Id. (emphasis added). The adverse possessor "is holding [the land] with the intention of taking and holding [it] as his, to the exclusion of all others." Nelson v. Johnson, 189 Ky. 815, 226 S.W. 94, 97 (1920) see also Black's Law Dictionary (9th ed. 2009) (defining "hostile possession" as "[p]ossession asserted against the claims of all others, especially the record owner").
Appellants declare they have been operating under a claim of right to the coal haul road since 1996. But that is at odds with their testimony at trial. Roy, Billy Ray, and Harvey each testified, without contradiction, that they requested permission from all the property owners, including Medlin, before traversing the coal haul road. One operating under a claim of right need not seek permission. The Appellants' testimony that they sought permission to access the coal haul road is antithetical to an easement by prescription because it defeats the hostile-use element necessary to the claim. Medlin's testimony that he, in fact, granted permission on a temporary basis further defeats the claim for "[i]t is a well settled rule that use of property by express or implied permission or license, no matter how long continued, cannot ripen into an easement by prescription." Poe, 371 S.W.3d at 775 (citation omitted); College v. Burnell, 111 S.W. 332, 333 (Ky. 1908) ("Where the use of a passway is merely permissive," it will not ripen into a legally-recognized prescriptive claim.).
It is not an uncommon thing for persons who have enjoyed the permissive use of an easement for a long period to indulge the hope which eventually ripens into a belief, that the use has been hostile and under a claim of right. This is so especially true where the owner of the servient estate is lenient in his requirements that it may be said the greater the accommodation the greater the danger.Godman, 202 S.W. at 666. That is the case here. Id.
Appellants argue Medlin's permission is non-operative and of no consequence because he was not the owner of record at the time he conferred it in 2003. Though not the titleholder of the land, Medlin indisputably resided on the property, exercised dominion of the land in question, and was in a position to grant permission to others to utilize it. The Appellants thought as much, for they sought out Medlin to request his permission to cross the land on which he resided.
Appellants also argue that the circuit court should not have found Medlin's testimony credible. They assert Medlin was impeached on critical issues, including when he legally purchased the property. Medlin satisfactorily explained the timeline of events leading up to his ownership. In any event, we decline to disturb the circuit court determinations, when sitting as fact-finder, of witness credibility and the weight to be given certain evidence. Cole, 59 S.W.3d at 473.
In sum, we find that the circuit court did not err when it found the Appellants' use of the coal haul road was not hostile in nature, and therefore affirm the court's denial of Appellants' claim for an easement by prescription, albeit on alternative grounds.
B. Easement by Estoppel
An easement by estoppel is rooted in ancient principles of estoppel and equity. Gosney, 163 S.W.3d at 899. It is designed "to prevent one who has failed to act when he should have acted from reaping a profit to the detriment of his adversary." Loid v. Kell, 844 S.W.2d 428, 430 (Ky. App. 1992).
To establish an easement by estoppel, the party claiming its existence must prove: (1) the promisor conveyed a false promise or representation to the promisee; (2) the promisor intended or expected the promisee to rely on the false representation; (3) the promisee believed and relied on the representation; and (4) action based thereon of such a character as to change the promisee's position prejudicially. Jones v. Sparks, 297 S.W.3d 73, 77 (Ky. App. 2009). Significantly, "[m]ere acquiescence . . . is not sufficient to create an estoppel. The party asserting it must have been induced to act to his detriment or misled to his injury." Embry v. Turner, 185 S.W.3d 209, 216 (Ky. App. 2006) (citation omitted).
The circuit court denied Appellants' request for an easement by estoppel, finding they failed to show "adequate proof that the [Appellees] made any material misrepresentation upon which [the Appellants] reasonably relied." (R. at 273-74). On appeal, Appellants argue Medlin "clearly admitted that he was not an owner of the Kemp's property when he allegedly gave the Lowes permission to build cabins using the coal road. Thus, his representation of ownership and permission was false." (Appellants' Brief at 19). Breaking this down further, Appellants allege Medlin: (i) falsely represented himself as the legal owner of the land upon which he resided; and (ii) falsely promised that the Appellants could use the coal haul road to build their cabins and access their land.
Like the circuit court, we find Appellants' arguments unpersuasive. We have scoured the record and find no support for Appellants' assertion that Medlin gave Appellees permission to use the coal road specifically to build cabins. Rather, they requested, and Medlin allowed them, to generally use the coal haul road to access their land. Significantly, the circuit court found persuasive Medlin's testimony that his permission was of limited duration, and the Appellees were aware of the time strictures imposed by Medlin.
Furthermore, there is no evidence that Medlin falsely represented that he legally owned his land in 2003. Perhaps more importantly, the record does not support the Appellants' claim that they changed their position in reliance on Medlin's alleged false promise of land ownership. Stated differently, Medlin's false representation of ownership, if any, did not induce the Appellees to build their hunting structures.
Substantial evidence supports the circuit court's conclusion that Appellees made no material misrepresentation upon which the Appellants reasonably relied. On this issue, we also affirm.
C. Easement by Necessity
Appellants also claimed an easement by necessity. The circuit court denied this claim because countervailing substantial evidence defeated Appellants' ability to prove to the court's satisfaction: (1) unity and severance of title to the parcels at issue and (2) that the coal haul road is the only available means of ingress to and egress from the property. Appellants declare they are entitled to an easement by necessity because they are landlocked by the golf course and the physical contours of the land, and they have no other means to access their property other than the coal haul road.
"The elements necessary for an easement by necessity are: 1) unity of ownership of the dominant and servient estates; 2) severance of the unity of title by a conveyance of one of the tracts; and 3) necessity of the use of the servient estate at the time of the division and ownership to provide access to the dominant estate." Carroll v. Carroll, 355 S.W.3d 463, 467 (Ky. App. 2011).
We agree with the circuit court that Appellants failed to prove unity and severance of title. No testimony or documentation of title was submitted at trial. This is fatal to Appellants' claim of an easement by necessity. "[T]he party claiming the right to an easement bears the burden of establishing all the requirements for recognizing the easement." Cary v. Pulaski Cnty. Fiscal Court, 420 S.W.3d 500, 509 (Ky. App. 2013) (citation omitted). Common ownership of the dominant and servient estates, and severance of title are necessary prerequisites - that is, required elements - to the establishment of an easement by necessity. Meredith, 59 S.W.3d at 491. Absent this proof, Appellants' request for an easement by necessity necessarily failed as a matter of law.
Furthermore, the circuit court found unpersuasive Appellants' claim of strict necessity. This Court has emphasized that "necessity of access is the primary factor for the existence of a way of necessity[.]" Id. "Strict necessity has generally been defined as absolute necessity such as where property is landlocked or otherwise inaccessible." Id. (footnote omitted). The Appellants submitted substantial evidence proving that there is "no other means of access[.]" Id. However, the Appellees countered that evidence, identifying three alternate routes: the cemetery road, extending the cabin driveway, and the creation of a new path over the ridge to Helton Hollow Road.
To the extent Appellants could possibly connect the coal haul road to either the cabin driveway or Helton Hollow Road, such would not provide access defeating strict necessity because those alternatives require Appellants to cross property belonging to others not parties to this litigation. See Carroll, 355 S.W.3d at 467 ("[T]his Court has previously rejected the proposition that a party fails to show necessity where a possibility exists that they could obtain a means of access across another adjacent owner's property.").
That leaves the cemetery road. Medlin testified the Appellants can access their property using this route, and that he would not object to an easement there. Billy Ray testified that, after the coal haul road became impassable, he began using cemetery road to access his property. It appears from the record that the cemetery road is a viable alternate route, thereby defeating strict necessity.
The circuit court committed no error when it determined the property was not "otherwise inaccessible" and denied the claim of an easement by necessity.
D. Evidentiary Issue
Finally, Appellants contend the circuit court abused its discretion when it allowed Medlin to offer expert opinion testimony. Appellants allege Medlin testified as an unqualified expert when he opined, based on his experience as "a constructor of roads," that the Appellants can access their property by connecting the coal haul road to Helton Hollow Road. Appellants also attack Medlin's "unsupported" and "unverifiable" testimony regarding elevations and distances gleamed from a topographical map neither introduced nor admitted into evidence. They declare Medlin was not vetted as an expert pursuant to KRE 104 nor was his testimony subjected to the rigors of Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589, 113 S. Ct. 2786, 2795, 125 L. Ed. 2d 469 (1993).
Kentucky Rule of Evidence
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We need not resolve whether Medlin indeed offered improper expert testimony. Assuming for argument's sake that he did, the circuit court's decision to allow the testimony was harmless error. The admission of incompetent evidence in a bench trial is harmless "if the trial judge did not base his decision on that evidence, or if there was other competent evidence to prove the matter in issue." Prater v. Cabinet for Human Res., Com. of Ky., 954 S.W.2d 954, 959 (Ky. 1997) (citations omitted). The circuit court did make passing reference to Medlin's topography-map testimony regarding the Helton Hollow Road in its final judgment. However, the judgment certainly does not turn on Medlin's "expert" testimony. The circuit court concluded, and we agreed, that the property could be accessed by means of the cemetery road; therefore, Medlin's testimony about the ability to construct a road to access the property by a different route was not relevant to the determination. Accordingly, we conclude that the introduction of this particular testimony was harmless error, if error at all.
IV. Conclusion
For the foregoing reasons, we affirm the March 31, 2014 Findings of Fact, Conclusions of Law, and Final Judgment of the Knox Circuit Court.
MAZE, JUDGE, CONCURS.
COMBS, JUDGE, CONCURS IN RESULT ONLY. BRIEFS FOR APPELLANTS: W. Edward Skees
New Albany, Indiana
BRIEF FOR APPELLEES: Gilbert E. Holland
Barbourville, Kentucky