Opinion
NO. 2013-CA-002042-MR NO. 2013-CA-002043-MR
02-19-2016
ROBERT WARNER APPELLANT v. HARLEY RICHARDSON APPELLEE AND JOHN LOYD AND BETTY SUE LOYD, his wife APPELLANTS v. HARLEY RICHARDSON APPELLEE
BRIEFS FOR APPELLANT: John T. Mandt Somerset, Kentucky BRIEF FOR APPELLEE: Billy G. Hopkins Somerset, Kentucky
NOT TO BE PUBLISHED APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE DAVID A. TAPP, JUDGE
ACTION NO. 10-CI-00602 OPINION
AFFIRMING BEFORE: ACREE, CHIEF JUDGE; THOMPSON, AND VANMETER, JUDGES. VANMETER, JUDGE: Robert L. Warner, John Loyd and Betty Sue Loyd appeal from the Pulaski Circuit Court's judgment concerning the status of Pole Ridge Road as an abandoned public road. For the following reasons, we affirm.
BACKGROUND
The defendant in the original action, Harley Richardson, placed a gate across Pole Ridge Road, a road which crosses Richardson's property situated in the Haynes Knob community of Pulaski County. The initial plaintiffs, Tommy and Raymond Ridner, filed suit seeking an injunction ordering Richardson to remove the gate, and prohibiting him from blocking the road in the future, so that they could continue to use Pole Ridge Road to access their property. As additional adjoining property owners, Warner and the Loyds intervened, seeking the same relief. The plaintiffs argued that the road was a public road, and therefore, Richardson had no right to block access to the road.
Pole Ridge Road was mentioned in Pulaski County Records as early as 1920. A portion of the original property containing the road was deeded to the Pulaski County Board of Education in 1932 for the Sulphur Springs School, which operated between 1932 and 1957. During that period, the public used Pole Ridge Road to transport teachers, students and administrators to the school. The road is unimproved, except for a small portion of the road which intersects Rush Branch Road. That portion is maintained by the county and is not at issue. Multiple witnesses testified that they currently use Pole Ridge Road to access their own property, and some evidence was presented of a few hunters, picnickers, and sightseers occasionally using the road.
Following a bench trial, the trial court concluded that Pole Ridge Road was once a public road acquired by common law dedication. However, the court further found that the road had been abandoned by the public more than fifteen years ago, making it now a private road. Next, the court found that Richardson cannot block the road because he did not inform the county executive of his intent to adversely possess the road as required by KRS 413.050. Finally, the court held that the Ridners and the Loyds each have a prescriptive easement over the road due to continuous use for over fifteen years. Warner was not granted such an easement because his initial testimony demonstrated that his use did not meet the fifteen year use requirement. The court made no effort to quiet title and made no findings concerning the property lines of the interested parties because all parties agreed that property boundary lines were not in dispute.
Kentucky Revised Statutes.
Warner and the Loyds subsequently filed a motion to alter, amend or vacate the court's findings of fact and conclusions of law. With that motion, Warner included an affidavit attempting to correct his earlier deposition testimony and clarify that he had actually used Pole Ridge Road for over fifteen years. However, the court declined to address that issue since a CR 59.05 motion to alter, amend or vacate cannot be used to present new evidence that should have been presented during the trial.
Kentucky Rules of Civil Procedure.
Warner and the Loyds make four arguments on appeal. First, they claim the court should have presumed that the county cared for the road until such a fact was disproven, and because the county cared for the road, the road was a county road rather than a public road. Next, they argue that Richardson failed to prove that he owned the property on which Pole Ridge Road sits, and thus he has no rights to the road. Thirdly, Warner and the Loyds claim the road was not abandoned because the adjoining landowners still used the road. Lastly, Warner claims he should have been given a prescriptive easement since he has used the road for the requisite fifteen years.
STANDARD OF REVIEW
For a case tried without a jury, the trial court's factual findings "shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." CR 52.01; Cole v. Gilvin, 59 S.W.3d 468, 472 (Ky. App. 2001). A factual finding is not clearly erroneous if it is supported by substantial evidence. Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998). Substantial evidence is evidence of substance and relevant consequence sufficient to induce conviction in the minds of reasonable people. Id. The fact-finder is "to determine the credibility of witnesses and the weight to be given the evidence." Uninsured Employers' Fund v. Garland, 805 S.W.2d 116, 118 (Ky. 1991). Issues of law are reviewed de novo by a reviewing court. Nash v. Campbell Cnty. Fiscal Court, 345 S.W.3d 811, 816 (Ky. 2011).
ANALYSIS
First, Warner and the Loyds argue that Pole Ridge Road should have been declared a road "formerly maintained by the county" for purposes of KRS 178.116(1) because the road once provided access to a school, and the trial court should have assumed that the county was once doing its duty to maintain roads that provide access to schools. Warner and the Loyds cite Madison Cnty. Bd. of Ed. v. Skinner, 299 Ky. 707, 712, 187 S.W.2d 268, 271 (1945), which indicates that the maintenance of roads providing access to schools is a matter for each county's fiscal court. Next, Warner and the Loyds cite Taylor v. Hampton, 271 S.W.2d 887, 890 (Ky. 1954), which holds: "[t]he courts indulge in the presumption that a public officer performs the duty required by law in a manner directed by it until the contrary is clearly established." From these two cases, the appellants conclude that because no evidence was presented that the county did not provide maintenance for Pole Ridge Road between 1932 and 1957 while the school was operating, the trial court should have presumed that the county did maintain the road during those years. Accordingly, Warner and the Loyds insist Pole Ridge Road is a road "formerly maintained by the county" as that phrase is used in KRS 178.116(1).
Warner and the Loyds argue that because Pole Ridge Road should have been maintained by the county during the years the school was open, and because Pole Ridge Road presently provides necessary access to private property, KRS 178.116(1) prohibits discontinuance of the road as a road "formerly maintained by the county." The trial court found that the parties presented no direct evidence of the county ever maintaining the road. We agree with the trial court that the parties presented insufficient evidence of county maintenance, and we believe that a presumption that the county once maintained the road for the benefit of the school is insufficient to prove former county maintenance. If Warner and the Loyds seek to prevent discontinuance of the road, then the burden is on them to prove that the road is one formerly maintained by the county. Without direct evidence of county maintenance, we do not believe the Pole Ridge Road qualifies as a road "formerly maintained by the county" for purposes of KRS 178.116(1).
The parties did present slight evidence of the county once maintaining part of the road - Tommy Ridner's son stated in his affidavit that he used county equipment to lay gravel on Pole Ridge Road. However, we believe this evidence is insufficient to support a finding that the county maintained the road.
Next, Warner and the Loyds allege that Richardson was required to prove that he owned the property on which Pole Ridge Road is situated in order for him to have rights over the road. While the trial court entertained some survey evidence concerning the boundaries of Richardson's property, the court explicitly stated in its order that it made no findings concerning property lines or quieting title. Instead, the court focused on Richardson's failure to comply with KRS 413.050(2) in acquiring rights to the road by adverse possession. The court made no findings as to whether Pole Ridge Road had once been part of Richardson's property because the parties agreed that property lines were not at issue. Warner and the Loyds claim they never agreed that land boundaries were not an issue, but the record reflects otherwise. Furthermore, the trial court enjoined Richardson from erecting a gate over this passway, and adjudged that the Ridners and Loyds have private prescriptive easements on the road to access their lands. Any error by the trial court with regard to this issue was harmless. CR 61.01.
The trial court ruled that in order for limitation to run in favor of Richardson, he was required to comply with KRS 413.050(2) by notifying the county judge/executive of that his "possession is adverse to the right of the public to the use of the road." This conclusion is irrelevant in light of the trial court's subsequent conclusion that Richardson could not "block the road from use by the Ridners and Loyd[s] because they have private prescriptive easements."
Warner and the Loyds next argue that the road was not abandoned. A public road is abandoned when public use has ceased for fifteen years. Sarver v. Allen Cnty., 582 S.W.2d 40, 43 (Ky. 1979). Ample evidence was provided to demonstrate that the public, or that portion of the public other than the adjacent landowners, has not used the road since 1957. Warner and the Loyds claim that the court erred by interpreting "public use" to exclude use by adjoining landowners. However, the trial court properly applied Kentucky precedent in ruling that a road's use by adjoining landowners does not constitute public use. See id.; Cummings v. Fleming Cnty. Sportsmen's Club, Inc., 477 S.W.2d 163, 165 (Ky. 1972); Cole v. Gilvin, 59 S.W.3d at 474-75. Even occasional use by individuals other than adjacent landowners has been held insufficient to constitute public use. See Cummings, 477 S.W.2d at 165; Cole, 59 S.W.3d at 474-75. Accordingly, the trial court correctly concluded that the formerly public road has been abandoned by the public.
Some evidence suggests that the public may have begun using the road again in 2010. Even so, as the trial court held, this is not enough time for the road to again become a public road by common law dedication. --------
Lastly, Warner claims he should be awarded a prescriptive easement over the road. Warner's initial deposition indicated that he had only used the road for thirteen years prior to initiation of this suit. However, after the trial court entered its judgment, Warner included an affidavit with his motion to alter, amend or vacate, correcting his earlier deposition testimony to claim that he had actually used the road for fifteen years prior to initiation of the lawsuit. We agree with the trial court's decision to dismiss this argument. "A party cannot invoke CR 59.05 to raise arguments and to introduce evidence that should have been presented during the proceedings before the entry of the judgment." Gullion v. Gullion, 163 S.W.3d 888, 893 (Ky. 2005) (emphasis added). If his testimony was inaccurate, Warner should have corrected it prior to the court entering judgment. He cannot introduce evidence that was available prior to the judgment after the judgment has been entered. Thus, unfortunately, Warner is not entitled to a prescriptive easement over Pole Ridge Road.
CONCLUSION
For the above reasons, the Pulaski Circuit Court's judgment is affirmed.
ACREE, CHIEF JUDGE, CONCURS.
THOMPSON, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
THOMPSON, JUDGE, DISSENTING: I respectfully dissent and would reverse the trial court's ruling that Robert L. Warner was not entitled to access to Pole Ridge Road. Further, I would remand to the trial court to consider whether Pole Ridge Road was dedicated to the public.
Warner asserted in his complaint that he had both a prescriptive easement and an easement by necessity. In the trial court's findings of fact and conclusions of law, it determined Warner had not established a prescriptive easement based upon his deposition testimony which only established thirteen years of continuous use of Pole Ridge Road, despite owning his farm since 1976. The trial court did not make findings or make a ruling as to whether Warner had an easement by necessity.
Warner testified by deposition that he first learned he could access his farm from Pole Ridge Road when he and surveyor Weylan Daulton used this road in 2000. He later clarified "it must have been sometime around 2000. I couldn't give you an exact time or an exact date or anything." He testified Pole Ridge Road became his exclusive means of access to his property after Strawberry Road was blocked by a gate in 2008.
Following the trial court's ruling denying Warner access based on his estimate of when he began using Pole Ridge Road, Warner investigated whether he could determine a more precise date for when he began using Pole Ridge Road. He then filed a motion to alter or amend the judgment with an affidavit in which he stated he began using Pole Ridge Road by December 13, 1997. Warner's assertion was based upon his review of the legal description of his land by Daulton, which states the survey was conducted on December 13, 1997. Warner attached the legal description listing this date to his affidavit.
It is uncontested that Warner's use of Pole Ridge Road is dated to this survey and, therefore, his affidavit is consistent with his deposition. It is also uncontested that Pole Ridge Road provides Warner his only access to his farm. Allowing Warner access would have minimal impact on Richardson because the trial court's ruling allows the Ridners and Loyds continuing access. Under these circumstances, a decision that land locks Warner's property and fails to consider whether he was entitled to an easement by necessity should not be upheld.
I also note that while the trial court ruled the Ridners and Loyds have private prescriptive easements, this does not mean the road will continue to be open to Warner and the other neighbors that live along the road but did not participate in this lawsuit. Although the trial court enjoined Richardson from erecting a gate blocking the Ridners and Loyds, they could jointly agree to access through a gate with a key. Therefore, its ruling that Richardson was required to comply with KRS 413.050(2) by notifying the county judge/executive that his "possession is adverse to the right of the public to use the road" in order for the limitation to run and for him to adversely possess the road is very important.
By affirming, the majority opinion leaves ownership of Pole Ridge Road unsettled. I would remand for the trial court to determine whether the portion of Pole Ridge Road that Richardson gated is owned by him or was dedicated to the public by his predecessor in interest.
The trial court concluded that Pole Ridge Road was once a public road acquired by common law dedication but was abandoned by a period of nonuse by members of the general public for more than fifteen years and a recent period of use by the general public was not long enough to make it a public road again. In making this conclusion, the trial court relied upon Sarver v. Allen County, 582 S.W.2d 40, 43 (Ky. 1979), which held that a prescriptive easement could be abandoned in the same way in which it was acquired. The majority opinion assumes from the trial court's reliance on Sarver that it found Pole Ridge Road originally became a public road through an easement by prescription.
However, it is unclear whether the trial court found the road became public through dedication or prescription. This distinction is significant for determining the current status of Pole Ridge Road. In Louisville & N. R. Co. v. City of Owensboro, 238 S.W.2d 148, 154-55 (Ky. 1951), the Court determined a street dedicated to the public, whether or not ever accepted by the city, does not lose its public nature through abandonment. Even when the area in which the street is located is altered to an extent that it prevents the street from being used by the public and such alterations are maintained for a long period of time, it cannot be adversely possessed without complying with KRS 413.050. See Hougland v. Perdue, 361 S.W.2d 291, 293 (Ky. 1962) ("one who dedicates a street to public use but retains possession until the city or county accepts it holds the land as a trustee for the public and not by adverse possession"); W.T. Congleton & Co. v. Roberts, 221 Ky. 712, 299 S.W. 579, 581 (1927) (once there is proof of an intention on the part of a landowner to make a dedication and acceptance of it by the public, then the dedication is complete and cannot be revoked by the dedicator or his privies); City of Henderson v. Yeaman, 169 Ky. 503, 184 S.W. 878, 882-83 (1916) (when a street is laid off for a town, which later became a city, whether used or not, it will not revert to private ownership: "[t]he city at all times had the right to improve [such publically dedicated street], and the public at all times had the right to the use of it."); Elliott v. City of Louisville, 123 Ky. 278, 90 S.W. 990, 992 (1906) (the mere non-use of property dedicated to public use will not work an abandonment of it, no matter how long the non-use takes place).
While the street at issue in Louisville & N. R. Co. was formally dedicated, a common-law dedication can also take place informally. "Both the intention of the owner to dedicate and an acceptance by the public may be inferred from use by the public for a substantial number of years." City of Louisville v. Louisville Scrap Material Co., 932 S.W.2d 352, 356 (Ky. 1996); Commonwealth, Dep't of Highways v. Wynn, 396 S.W.2d 798, 800 (Ky. 1965); Cole v. Gilvin, 59 S.W.3d 468, 473 (Ky.App. 2001). See Kentucky Revised Statutes (KRS) 82.400(3) (providing for a conclusive presumption of a dedication to the public after five years of unrestricted use by the general public).
Common-law dedication can be the result of estoppel. Hofgesang v. Woodbine Ave. Realty Co., 414 S.W.2d 580, 585 (Ky. 1967). "If it can be shown that there has been a continual use for such a length of time as to create an estoppel and an acceptance, then the dedication is complete." Freeman v. Dugger, 286 S.W.2d 894, 896 (Ky. 1956).
While the trial court's reliance upon Sarver implies that it found the public's access was acquired by a prescriptive easement, its conclusion that Richardson cannot block the road because he did not inform the county executive of his intent to adversely possess it as required by KRS 413.050 implies that it found the road was publically dedicated and cannot simply revert to its previous owner. I would remand for the trial court to determine whether the public's right to access the road expired because of nonuse of a prescriptive easement or whether the public right to access remains because the road became public through dedication. If the former, it would be proper for the trial court to hear additional evidence to determine whether Richardson can establish ownership of a portion of the road based on it traversing his property. If the later, it does not matter whose property it traverses, because it will not automatically revert to that property owner.
The evidence before the trial court appears to be more consistent with Pole Ridge Road becoming a public road through dedication by estoppel than through a prescriptive easement. Testimony by witnesses supported a finding of a dedication by estoppel from the public's longstanding use of the road for access to the Sulphur Springs School between 1932 and 1957, use for grocery deliveries and general use by the public.
I would reverse and remand the trial court's ruling that Robert L. Warner was not entitled to access to Pole Ridge Road for it to consider all the evidence as to whether he has a right to access through a prescriptive easement or an easement by necessity, and reverse and remand for the trial court to determine whether Pole Ridge Road became public through a prescriptive easement or through a dedication.
Accordingly, I dissent. BRIEFS FOR APPELLANT: John T. Mandt
Somerset, Kentucky BRIEF FOR APPELLEE: Billy G. Hopkins
Somerset, Kentucky