Becraft v. Ellington
| Decision Date | 01 July 2016 |
| Docket Number | NO. 2014-CA-001214-MR,2014-CA-001214-MR |
| Parties | HARLAN RANDALL BECRAFT APPELLANT v. WILLIAM DAVID ELLINGTON; JANE ELLINGTON, HIS WIFE; HENRY LEROY ANDERSON; AND BONNIE B. ANDERSON APPELLEES |
| Court | Kentucky Court of Appeals |
HARLAN RANDALL BECRAFT APPELLANT
v.
WILLIAM DAVID ELLINGTON; JANE ELLINGTON, HIS WIFE;
HENRY LEROY ANDERSON; AND BONNIE B. ANDERSON APPELLEES
NO. 2014-CA-001214-MR
Commonwealth of Kentucky Court of Appeals
JULY 1, 2016
NOT TO BE PUBLISHED
APPEAL FROM BATH CIRCUIT COURT
HONORABLE WILLIAM EVANS LANE, JUDGE
ACTION NO. 10-CI-90020
OPINION
REVERSING AND REMANDING
BEFORE: D. LAMBERT, J. LAMBERT, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Harlan Randall Becraft brings this appeal from a July 10, 2014, Findings of Fact, Conclusions of Law and Judgment of the Bath Circuit Court concluding that a county road, public road and/or right-of-way easement existed upon his real property. We reverse and remand.
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Harlan Randall Becraft, Henry Leroy Anderson, and Bonnie B. Anderson own in fee simple a parcel of real property located in Bath County (Becraft property). To the southwest of the Becraft property, William David Ellington and Jane Ellington own real property that directly abuts the Becraft property. A dispute arose between the parties concerning whether a passway exists over the Becraft property to the Ellington property and if so, whether the passway qualifies as a county road, public road, and/or right-of-way easement.
The Ellingtons filed a Complaint and Petition for Declaration of Rights in the Bath Circuit Court on February 3, 2010. The Ellingtons named, inter alios, Becraft and the Andersons as defendants. The Ellingtons alleged that a roadway known as Smokey Hollow Road transversed over the Becraft property in a southwest direction and unto their property:
A county road, which has been known as Smokey Hollow Road, runs from Oakley-Pebble Road in Bath County, Kentucky[,] in a westwardly direction, first crossing the Bailey Property and then crossing the Becraft/Anderson Property and reaching the Ellington Property[.]
Complaint and Petition for Declaration of Rights at 4. The Ellingtons claimed the right to use Smokey Hollow Road over the Becraft property to reach their real property as such road constituted a county road, a public road, and/or a right-of-way easement.
The Andersons and Becraft filed answers and denied that a county road, public road, or right-of-way easement was located across their property. In
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fact, the Andersons and Becraft alleged that only a private passway transversed the northeastern part of their property and that the southwestern part of their property is heavily wooded and nonaccessible by vehicle. The Andersons and Becraft maintained that no passway physically existed upon their property that reached the Ellingtons' property.1
The matter was heard by the court without a jury pursuant to Kentucky Rules of Civil Procedure (CR) 52.01. After hearing the evidence, the circuit court rendered Findings of Fact, Conclusions of Law and Judgment. The court concluded that a passway named Smokey Hollow Road transversed thru the Becraft property in a southwestern direction onto the Ellington property and that such road constituted a county road, a public road, and a right-of-way easement acquired by prescription. This appeal follows.2
To begin, we review the circuit court's findings of fact under the clearly erroneous standard. CR 52.01. Thereunder, a finding of fact is not clearly erroneous if supported by substantial evidence of a probative value. See Phelps v. Brown, 295 S.W.2d 804 (Ky. 1956). However, issues of law are reviewed de novo. Gosney v. Glenn, 163 S.W.3d 894 (Ky. App. 2005). Our review proceeds accordingly.
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Becraft initially contends that the circuit court erred by declaring the alleged passway was a county road known as Sleepy Hollow Road.3 For the following reasons, we agree.
The law is well-settled that a county road may be only established by formal act of the fiscal court. Sarver v. Allen Cnty., By and Through its Fiscal Court, 582 S.W.2d 40 (Ky. 1979); Porter v. Johnson Cnty. Judge/Executive, 357 S.W.3d 500 (Ky. App. 2010); Blankenship v. Acton, 159 S.W.3d 330 (Ky. App. 2004). Kentucky Revised Statutes 178.010(1)(b) plainly defines a county road as a public road that has been "formally accepted by the fiscal court of the county as a part of the county road system." Our Court has specifically held that the adoption of "a given road as a county road . . . must be evidenced by proof consisting of an official order, resolution or ordinance of the fiscal court that appears of record." Cary v. Pulaski Cnty. Fiscal Court, 420 S.W.3d 500, 507-08 (Ky. App. 2013); see also Illinois Cent. R. Co. v. Hopkins County, 369 S.W.2d 116 (Ky. 1963).
In this case, it is undisputed that no official order, resolution, or ordinance of the Bath Fiscal Court was entered into evidence accepting any part of Sleepy Hollow Road and/or the alleged passway over the Becraft property into the county road system. While the state road map was entered into evidence, there was no final order or ordinance of the Bath Fiscal Court evidencing the adoption of said road map. In view of the utter lack of evidence as to a formal act by the Bath
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Fiscal Court, we conclude that the alleged passway over the Becraft property is not a county road as a matter of law. See Cary, 420 S.W.3d 500.
Becraft next asserts the circuit court erred by deciding that the alleged passway was a public road. In so deciding, the circuit court concluded:
The weight of the evidence introduced at trial clearly indicates that the road involved in this action was sufficiently used by the public over a long period of time to cause it to become a public passway. The road involved in this action has been marked and identified as running from and connecting Oakley-Pebble Road through the property now owned by the Bailey family, through the property owned by the Becraft/Anderson Defendants and through the property now owned by the Ellingtons to the White Oak Turnpike, now known as White Oak Road, since at least 1884. Smokey Hollow Road is still shown on maps sold to the public showing...
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