Delph v. Daly

• Decision Date: 06 June 1969
• Citation: 444 S.W.2d 738
• Parties: Bernard DELPH et al., Appellants, v. C. Lawton DALY et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 738

444 S.W.2d 738

Bernard DELPH et al., Appellants, v. C. Lawton DALY et al., Appellees.

Court of Appeals of Kentucky.

June 6, 1969.

Rehearing Denied Oct. 10, 1969.

John M. Berry, Jr., Berry & Floyd, Carrollton, for appellants.

Frank Ware, Vest & Ware, Covington, for appellees.

CLAY, Commissioner.

Appellants were enjoined from building a roadway on their property which would join or form a continuation of an existing roadway through a residential subdivision in Gallatin County. It is contended on appeal that the Chancellor erroneously determined the rights of the parties.

In 1964 one Fogg had a life estate and appellant Nancy Delph had a remainder interest in a 230-acre tract of farmland, part of which fronted on the Ohio River Markland Dam Pool. Acting for himself and the remaindermen, he planned a residential subdivision of an 11-acre area. He recorded a plat which divided the property into 20 numbered lots. These lots were somewhat unusual in that each was in two sections, divided by a 40-foot passway designated on the plat as 'Road Easement'. For our purposes we will consider this subdivision as a strip running from south to north, with water frontage on the west side. At the southern boundary of the subdivision is a private road which extends to Kentucky Highway No. 35. The north boundary, including that of the roadway, was designated on the plat as a 'Fence Line'. Appellees were conveyed fee simple title to lot No. 9 in this subdivision. The deed did not contain a metes and bounds description but simply referred to the lot by number.

Lot No. 9 is typical of the other lots in this subdivision. On the plat it has the appearance of two separate lots, one on each side of the 40-foot roadway. The eastern section, containing .14 of an acre, has the dimensions of 60 100 feet. The western section (on the water front) contains .31 of an acre and has the dimensions of 100 114 feet. Both the plat and the surveyor's description of this subdivision show very clearly that the opposite sides of the 'Road Easement' are designated as boundary lines of the two sections of each lot. The significance of this will be commented on later in the opinion.

After the death of Fogg in 1966, the balance of the original tract was divided between the two remaindermen and appellant Nancy Delph became the fee owner of 71 acres bordering on the water front and extending northwardly from the subdivision. She began the development of a new subdivision immediately north of the original one. Her intention to build a roadway through the new subdivision, which would constitute an extension of the 'Road Easement' in the original subdivision, precipitated this lawsuit. Each of the opposing parties contends that he owns the fee in the original road. The Chancellor determined that appellees were the owners (of the road segment dividing the two sections of their lot No. 9) and enjoined appellants from doing any act leading to the building or construction of a roadway joining to or forming a continuation of the roadway in the original Fogg subdivision.

It is evident from this record that the legal character of the 'Road Easement' is not established specifically by the plat or the deeds. The parties have stipulated that it was not dedicated to the public. The crucial legal question is whether the original owners (in whose shoes appellants now stand) retained the fee in this roadway when the Fogg subdivision was created and the lots therein sold, or whether they conveyed it to the lot owners. We think this a classic case for the application of the priciple quoted in Monroe v. Rucker, 310 Ky. 229, 220 S.W.2d 391, 393:

'The tendency of modern decisions is to disregard technicalities and to treat all uncertainties in a conveyance as ambiguities subject to be cleared up by resort to the intention of the parties as gathered from the instrument itself, the circumstances attending and leading up to its execution, and the subject matter and the situation of the parties as of that time. Hence, in the construction of deeds surrounding circumstances are accorded due weight. In the consideration of these various factors, the court will place itself as nearly as possible in the position of the parties when the instrument was executed.'

The Chancellor found as a fact that it was the intention of Fogg (representing the original owners) to convey to each lot owner the fee simple title to the roadway dividing the two sections of each lot. This of course was the basic issue in the case. This finding, however, was in part based on a conclusion of law that the grantors could not 'reserve' any rights in the passway without an 'explicit reservation thereof'. We find no basis for such a legal conclusion and it begs the question presented in this controversy. If the grantors did not convey the fee to appellees, it still remained in them and no one is required to 'reserve' in writing, or otherwise, an interest which he has not parted with. The cases cited by appellees of Lebus v. Boston, 107 Ky. 98, 51 S.W. 609, 47 L.R.A. 79; McGurn v. Louisville & N.R. Co., 177 Ky. 835, 198 S.W. 222; and Conrad v. Smith, 203 Ky. 171, 261 S.W. 1103, have no application here. In those cases the grantors were claiming a passway easement by implication, and it was not questioned that they had conveyed fee simple title. That is the very bone of contention in the case before us.

It is a generally recognized rule that in the absence of language showing a contrary intention, where a lot is conveyed by number with reference to a plat which shows the lot as abutting on a street or highway, the grantee takes the fee to the center of such street or highway. Henkenberns v. Hauch, 314 Ky. 631, 236 S.W.2d 703; Kreamer v. Harmon, Ky., 336 S.W.2d 561. In Matthews v. Hudson, 308 Ky. 39, 213 S.W.2d 424, this 'rule' was referred to as a 'presumption'. It is simply a precept of construction utilized to determine the intention of the grantor in the absence of other controlling language or circumstances. See exhaustive annotation in 49 A.L.R.2d 982. Most of the cases in which it has been invoked involved public streets and highways. There is apparently a conflict of authority as to whether the rule applies to private passways. 12 Am.Jur.2d, Boundaries, section 53 (page 593). To the extent the situations are similar, it should apply equally to both. However, in a carefully considered Oregon case the court reached the conclusion that the intention of the grantor not to grant to the center of a private passway 'is more readily indicated than in the case of a public way'. Buel v. Mathes, 186 Or. 160, 205 P.2d 551, 561. The reasons appear here.

The 'main basis' for this rule is that it is unreasonable to suppose that the grantor intended to retain his fee title in the highway area since it is not likely to be of any practical importance to him. 12 Am.Jur.2d, Boundaries, section 38 (page 578); see also Henry v. Board of Trustees, 207 Ky. 846, 270 S.W. 476. When we consider a private passway however, with the grantor owning adjoining land, this reason for the rule disappears. The practical importance of the grantors' interest in this roadway is exhibited in this very case. Assuming the rule of construction still has some force, we consider whether the plat, appellees' deed and the surrounding circumstances establish an intent on the part of the grantors to retain the fee.

Appellants contend it is obvious from the plat itself that appellees, when they were conveyed lot No. 9, were conveyed fee simple title only to the two sections lying on opposite sides of the roadway. Certainly they were two distinct and complete separate sectional areas. Add to this the reference in the surveyor's description to the sides of the road 'which define lot boundaries'. While some courts take a different view, in Kentucky we recognize that fixing the road line as a lot boundary does not prevent the grantee from acquiring a fee interest to the center of a street or highway. Hensley v. Lewis, 278 Ky. 510, 128 S.W.2d 917, 123 A.L.R. 537. But this ostensible boundary takes...