Carroll v. Meredith, 2000-CA-002289-MR.

• Decision Date: 26 October 2001
• Docket Number: No. 2000-CA-002289-MR.,2000-CA-002289-MR.
• Citation: 59 S.W.3d 484
• Parties: Marlow CARROLL, Appellant, v. Timmy MEREDITH, Appellee.
• Court: Kentucky Court of Appeals

59 S.W.3d 484

Marlow CARROLL, Appellant, v. Timmy MEREDITH, Appellee.

No. 2000-CA-002289-MR.

Court of Appeals of Kentucky.

October 26, 2001.

COPYRIGHT MATERIAL OMITTED

Bryan Le Sieur, Brownsville, KY, for Appellant.

Gary S. Logsdon, Brownsville, KY, for Appellee.

Before JOHNSON, KNOPF and MILLER, Judges.

OPINION

JOHNSON, Judge:

Marlow Carroll has appealed from an order of the Edmonson Circuit Court entered on June 23, 2000, which granted Timmy Meredith an easement by necessity to the back portion of his property over a private roadway on Carroll's property. Having concluded that the trial court erred by applying an incorrect legal standard and by finding sufficient necessity for the use of the roadway, we reverse.

Carroll owns an 80-acre tract of land adjacent to a six-acre tract of land owned by Meredith. Carroll purchased his land in 1974 after having engaged in mining operations, along with his employer, on the property under a lease agreement between 1970 and 1974. Meredith purchased his land in 1994. At one point, both tracts were owned by Joel Stinnett, who created a roadway in the 1940's across the property to the J. Carroll Road, a two-lane public highway. The Stinnett property was subsequently owned by Carroll's parents and other relatives who divided it in approximately 1966. Following the division of the property, the Joel Stinnett Roadway was used as the primary means of ingress and egress off of J. Carroll Road into Marlow Carroll's tract. Both the Carroll and Meredith tracts abut the J. Carroll Road, with Meredith having approximately 300-500 feet of frontage on the J. Carroll Road. The Joel Stinnett Roadway borders the two parties' properties.

Between 1970 and 1974, a locked cable was placed across the Joel Stinnett Roadway. After Carroll purchased his tract, he erected a wooden gate across the entrance that is approximately 50-100 feet from the J. Carroll Road. He locked the gate with a padlock and placed a no trespassing sign on it. Carroll alone has maintained the Joel Stinnett Roadway. Carroll periodically allowed some individuals to use the roadway for access to his pond or other property located behind his tract. When Meredith purchased his tract, Carroll gave him a key to the lock on the fence and permission to use the roadway to transport wood Meredith cut on the back or lower portion of his tract. After some incidents involving destruction of items on Carroll's property and injury to one of his cows, Carroll changed the lock on the gate and informed Meredith that he would no longer be allowed to use the Joel Stinnett Roadway. Carroll also put up fencing along the roadway to prevent access to it. Meredith still had access to his mobile home, which was located on the front section of his tract, via the J. Carroll Road and a driveway connected to a portion of the Joel Stinnett Roadway which had not been restricted by the gate, but he had no established means of access by vehicle to the back or lower portion of his tract.

On March 7, 1998, Meredith filed a complaint in the Edmonson Circuit Court seeking to quiet title to the land containing the Joel Stinnett Roadway. He claimed a fee simple title to the land by adverse possession. After taking the depositions of the parties, Carroll filed a motion for summary judgment in September 1998, which the trial court denied because of the existence of genuine issues as to material facts.

On March 31, 1999, the trial court conducted a bench trial at which Timmy Meredith and Doyle Hardin, a surveyor, testified for the plaintiff/appellee and Marlow Carroll, Eddie Higgs, Ivan Hornback, and Wilbur Oller testified for the defendant/appellant. Meredith testified that the locked gate on the Joel Stinnett Roadway was in place when he purchased his property and that he had been aware of its existence for at least 20 years. He stated that he knew Carroll controlled access to the roadway. Meredith said Carroll initially allowed him to use the roadway but later withdrew his permission and changed the lock. He stated that no one had lived on his tract for at least 15 years prior to his purchasing it but that he lived there in a mobile home with his parents. He indicated that a bluff' on his property prevented easy access to the back portion except by way of the Joel Stinnett Roadway. Meredith said he needed access to the back portion of his property to transport wood.

Doyle Hardin testified that the description in Meredith's deed did not contain sufficient measurements for him to prepare a plat of the property. He stated that the roadway provided access to the back or lower portion of Meredith's tract and that otherwise it would be very difficult to get a vehicle across Meredith's property because of a steep bluff. He believed that use of a roadway in a deed description generally is interpreted to convey ownership to the center of the roadway.

Marlow Carroll testified that Joel Stinnett originally created the roadway when he owned a large piece of property which included the land owned by the two parties. The land was later owned by Carroll's grandmother and father. The roadway provided access to a house and a lake on the property now owned by Carroll. It was also used during the strip-mining operations between 1970-1974. When Carroll purchased his tract, he initially prevented use of the road with a locked wire cable and later a wooden fence. In 1974, Ivan Hornback's mother-in-law, Corene Miller, was living in a mobile home on Meredith's tract. Hornback purchased the tract in 1977 when his mother-in-law left the area and no one lived on the property until 1994 when Meredith purchased it from Hornback and Wilbur Oller. Carroll testified that neither Miller, nor Hornback had used the Joel Stinnett Roadway. Carroll allowed a few people to use the roadway for access to the lake on his property for purposes of fishing. Carroll stated that he alone maintained the roadway. He said that he allowed Meredith to use the roadway to haul wood, but a year later he withdrew his permission and changed the lock on the fence. Carroll testified that based on his experience having owned and operated a bulldozer for several years, a roadway could be created entirely on Meredith's land for vehicular use in three to four hours.

Ivan Hornback and Wilbur Oller testified that no one lived on the Meredith tract between 1977-1994. Hornback also stated that he did not speak with Meredith before Meredith purchased the property in 1994. Oller said that he viewed the property with Meredith's father and they did not use the roadway to access the back portion, but instead walked down the bluff. He stated that he did not discuss access to the back of the property with the Merediths. Oller also testified that he assumed the Joel Stinnett Roadway was not part of his property, so he intended to build a roadway across the property but sold it before he could start the project. Oller indicated that it would be expensive to build a new road.

On June 23, 2000, the trial court entered an order wherein it ruled that Carroll had acquired title to the Joel Stinnett Roadway through adverse possession, but that Meredith was entitled to a limited easement for access to the back portion of his tract. Although acknowledging that Meredith failed to plead the existence of an easement and did not establish the right to ownership or use of the roadway by equitable estoppel, the trial court ruled that there was sufficient evidence admitted at trial to support the recognition of an implied easement by necessity. It reasoned as follows:

As Defendant notes, there are no Kentucky cases giving an easement by necessity when a portion of the tract has access to a public road. However, there are also no cases holding that such a finding would be improper. It appears that building a road that would allow a vehicle to travel from the front part of the property, over the bluff, to the rear portion of the property, while not impossible, would be a tremendous undertaking in terms of time and expense. There are Kentucky cases, including Bob's Ready to Wear, Inc. v. Weaver, 569 S.W.2d 715 (Ky.App.1978) holding that one isn't required to show "absolute necessity" for access to their property, but that "all that is required is that the easement be reasonably necessary." In that case the court stated that the fact that one of the parties had other access to their store "is not an automatic bar to their claim to an easement by implication to the parking lot."

Likewise, in Knight v. Shell, 313 Ky. 852, 233 S.W.2d 973 (Ky.1950), the court quoted from Restatement, Property, Volume 5, Chapter 38, Section 476g, p. 2983:

.... If land can be used without an easement, but cannot be used without disproportionate effort and expense, an easement may still be implied in favor of either the conveyor or the conveyee on the basis of necessity along (sic) without reference to prior use.

Taking into account the effort and expense building a roadway through the Plaintiff's property would entail and the fact that the access Plaintiff is asking for is minimal (the right to use a portion of the roadway to carry firewood and gardening items) this Court finds that the Plaintiff is entitled to an easement of the roadway.

On June 30, 2000, Carroll filed a motion to amend pursuant to CR¹ 52.02 and CR 59.01 challenging the trial court's awarding of an easement to Meredith. He argued there was insufficient evidence of necessity. On August 25, 2000, the trial court summarily denied the motion. This appeal followed.

The sole issue on an appeal is whether the trial court erred by recognizing an easement by necessity over the Joel Stinnett Roadway in favor of Meredith. Carroll contends that the trial court's finding of an easement by necessity is not supported by the evidence and that it erred in applying the law to the facts. He asserts that there was no proof that there would be any disproportionate expense or effort required to provide...