Cole v. Gilvin

• Citation: 59 S.W.3d 468
• Decision Date: 19 October 2001
• Docket Number: No. 2000-CA-001961-MR.,2000-CA-001961-MR.
• Parties: Nelson COLE and Marilyn J. Cole, Appellants, v. William GILVIN, Shirley Gilvin, Daniel Gilvin, Michael Gilvin (Individually), Michael Gilvin, d/b/a The Gilvin Family Partnership, Appellees.
• Court: Court of Appeals of Kentucky

59 S.W.3d 468

Nelson COLE and Marilyn J. Cole, Appellants, v. William GILVIN, Shirley Gilvin, Daniel Gilvin, Michael Gilvin (Individually), Michael Gilvin, d/b/a The Gilvin Family Partnership, Appellees.

No. 2000-CA-001961-MR.

Court of Appeals of Kentucky.

October 19, 2001.

COPYRIGHT MATERIAL OMITTED

Kenneth E. Dillingham, Elkton, KY., for Appellants.

Harold M. Johns, Elkton, KY., for Appellees.

Before BARBER, DYCHE and JOHNSON, Judges.

OPINION

JOHNSON, Judge:

Nelson Cole and his wife, Marilyn, have appealed from a final judgment of the Todd Circuit Court entered on June 12, 2000, which held that they have no legal right of way to their realty over a passway or roadway on the property owned by the Gilvins. Having concluded that the trial court properly found that the Coles had no easement and the passway was not a public road, we affirm.

In March 1986, the Coles purchased a 35 acre tract of land from the Farmers Home Administration (FHA) for $76,800.00. In April 1988, the Gilvins also acquired from the FHA for $59,000.00 a tract of land which is adjacent to the property previously purchased by the Coles. Both tracts had been part of a larger farm owned by Marion Wells and his wife since the 1940's. When Marion died in 1970, the property passed to his wife, Minnie Lee Wells, who died in 1972.

Following the death of Minnie Wells, the farm property was partitioned and divided among the Wells' three children, Polly (Wells) Collins, Christine Rager and John Henry Wells. In 1981, John Henry Wells transferred his tract of land to his grandnephew, Todd Hurt, who was Christine Rager's grandson. In 1984, Christine Rager conveyed her tract of land to the FHA; and in 1985, Todd Hurt conveyed his tract of land to the FHA. The Coles purchased the tract previously owned by Christine Rager, and the Gilvins purchased the tract previously owned by John Henry Wells and Todd Hurt. Polly (Wells) Collins retained the 15 acre tract she inherited from her mother.

Shortly after purchasing their property, the Coles registered their property with the federal government set aside program which required them to maintain it as grassland. They also leased the property to hunters for use during hunting season. Meanwhile, William and Shirley Gilvin have not lived on their property but started building a house there in 1995 in anticipation of living there in their retirement years. Instead of attempting to use the disputed passway which also crosses Polly Collins' property, the Gilvins have constructed a new roadway connecting their property to Williams Road.

At the time the parties purchased their respective properties from the FHA, there was a one-lane passway or "roadway" linking the Coles' tract with Williams Road, a county road. The passway began with a gravel surface traversing the property of Polly Collins, which abuts Williams Road, then crossed the Gilvins' tract until it split into two paths near the boundary line of the parties' properties. At this point, one path with a gravel surface went to the house built by the Gilvins; whereas, the second path with a dirt surface went onto the Coles' property having only a vague, unclear profile covered with vegetation. Nelson Cole had used the passway for access to his property for viewing the tract before purchasing it and to mow the grass once a year as required under the set aside program. The Gilvins have placed a gravel surface on the passway from their house to Williams Road, while the Coles have done nothing to maintain or improve the passway.

In the fall of 1998, after experiencing some vandalism to their house, the Gilvins placed a locked gate across the passway that prevented the Coles from using the passway. On February 25, 1999, the Coles filed a complaint in the Todd Circuit Court alleging the existence of a prescriptive easement and seeking a restraining order prohibiting the Gilvins from interfering with their use of the passway for ingress to and egress from their property. On May 7, 1999, the trial court conducted a hearing on the motion for a temporary injunction at which Nelson Cole and Dan Gilvin testified. At the end of the hearing, the trial judge personally viewed the properties and passway at issue. On May 20, 1999, the trial court granted the Coles a temporary injunction allowing limited use of the passway. After denying the Gilvins' motion to dismiss or amend the temporary injunction, the trial court scheduled a trial on the merits.

On May 5, 2000, the trial court conducted a bench trial at which the Coles called eleven witnesses including Nelson Cole, and the Gilvins called six witnesses including Dan Gilvin and Polly Collins. Several of the Coles' witnesses testified that the passway was used by the general public until the 1940's when Marion Wells acquired ownership of the various parcels. Thereafter, members of the Wells family used it primarily for farming operations. The Coles also offered testimony that construction of an alternative roadway would cost approximately $42,000.00 $44,000.00.¹ Nelson Cole testified that the Wells family did not require permission for the use of the passway and state and county employees allegedly placed gravel on the passway periodically. All of the witnesses testified that no gate was placed on the passway until the Gilvins did so in 1998.

The Gilvins offered evidence from six witnesses including Polly Collins, and Shirley and Dan Gilvin. Polly Collins testified that the passway was created and available for the benefit of the Wells family. She stated the passway was not used by the general public, but rather was used to assist in farming operations. Collins testified that during the period of her ownership since 1974, neither she nor any government officials attempted to maintain the passway. William Harris, a land surveyor, stated that based on his research the passway has never been adopted or noted on any official map as a public road. Another witness testified that an alternative roadway to the Cole property could be constructed for approximately $6,000.00. There also was evidence that none of the deeds involving either the Cole or Gilvin property reserved an easement or right to use the disputed passway.

On June 12, 2000, the trial court entered an extensive 17-page final judgment containing findings of fact and conclusions of law. In the judgment, the trial court thoroughly analyzed the three legal theories relied upon by the Coles: public passway, easement by prescription, and quasi-easement or easement by implication. After discussing the history of the two tracts and the disputed passway, the trial court held that none of the three legal theories supported the Coles' claim to a right of access over the Gilvins' property. This appeal followed.

We begin with the standard of appellate review. Since this case was tried before the court without a jury, its 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."² A factual finding is not clearly erroneous if it is supported by substantial evidence.³ Substantial evidence is evidence of substance and relevant consequence sufficient to induce conviction in the minds of reasonable people.⁴ "It is within the province of the fact-finder to determine the credibility of witnesses and the weight to be given the evidence."⁵ With respect to property title issues, the appropriate standard of review is whether the trial court was clearly erroneous or abused its discretion, and the appellate court should not substitute its opinion for that of the trial court absent clear error.⁶

I. PUBLIC ROADWAY

The Coles argue that the disputed passway was a public road. They state that there was "overwhelming" testimonial evidence that the passway was used by members of the community at large either to access homes once located along the passway or for various other reasons. They also assert that the passway (roadway) was repaired and/or improved by government employees by spreading gravel on it.

The trial court stated that although there was some evidence of public use of the passway, the evidence was too weak to make an affirmative finding that the passway qualified as a public road. It noted that there was no indication on any map that the passway was a public road.

In Freeman v. Dugger,⁷ the Court stated:

"It is settled in this state that a general and long-continued use of a passway by the public as a right will create the right to continue the use and the owner of the land traversed by the passway who allows the public to use it as a highway for a long period of years under a claim of right will be estopped from denying a dedication to the public. Long-continued use[] by the public will constitute an implied acceptance of the dedication."⁸

Both the intention of the owner to dedicate and the acceptance by the public may be inferred from use by the public for a substantial number of years.⁹ A roadway may become a public road upon general public use and control and maintenance by the government for 15 years.¹⁰ The Coles rely on the case of Whilden v. Compton,¹¹ which held that "a public road can also be established [under a theory of dedication by estoppel] by general and long continued use of a passway by the public."¹² In Whilden, the Court referred to several facts that support the finding of a public road in that case such as use of the roadway by residents along the roadway, use by customers of a resident who ran a blacksmith shop, repair and annual grading of the roadway by the county, and use for mail service to residents.

In the case sub judice, the evidence of public use consisted of testimony from a few witnesses for the Coles that the passway had been used by the general public for access to Whipplewill Creek and surrounding property for hunting and fishing. Some of the witnesses also stated that several families had lived along the...