Ellington v. Becraft

• Court: Supreme Court of Kentucky
• Writing for the Court: OPINION OF THE COURT BY JUSTICE KELLER
• Citation: Ellington v. Becraft, 534 S.W.3d 785 (Ky. 2017)
• Decision Date: 14 December 2017
• Docket Number: 2016-SC-000513-DG
• Parties: William David ELLINGTON and Jane Ellington, Appellants v. Harlan Randall BECRAFT; Donna Michele Becraft; Henry Leroy Anderson; Bonnie B. Anderson ; Unknown Heirs of Ewell Gordon Bailey; Britney Bailey; Dustin Bailey; Eleanor W. Bailey; Karen Bailey Hart; Danny Hart; Addison Bailey; Leslie Sparks ; and Bath County, Kentucky, Appellees

534 S.W.3d 785

William David ELLINGTON and Jane Ellington, Appellants

v.Harlan Randall BECRAFT; Donna Michele Becraft; Henry Leroy Anderson; Bonnie B. Anderson ; Unknown Heirs of Ewell Gordon Bailey; Britney Bailey; Dustin Bailey; Eleanor W. Bailey; Karen Bailey Hart; Danny Hart; Addison Bailey; Leslie Sparks ; and Bath County, Kentucky, Appellees

2016-SC-000513-DG

Supreme Court of Kentucky.

DECEMBER 14, 2017

COUNSEL FOR APPELLANTS: Stephen Edward Neal, Mount Sterling, White, Peck, Carrington, LLP.

COUNSEL FOR APPELLEE, HARLAN RANDALL BECRAFT: Leah Nell Hawkins, Winchester.

COUNSEL FOR APPELLEE, BATH COUNTY, KENTUCKY: Kimberly S. H. Price, Owingsville.

COUNSEL FOR APPELLEE, UNKNOWN HEIRS OF EWELL GORDON BAILEY: Julie Diane S Williamson, Hughes Letcher Williamson PSC.

COUNSEL FOR APPELLEE, DONNA MICHELE BECRAFT: Donna Michele Becraft, pro se.

COUNSEL FOR APPELLEE, HENRY LEROY ANDERSON: Henry Leroy Anderson, pro se.

COUNSEL FOR APPELLEE, BONNIE B. ANDERSON: Bonnie B. Anderson, pro se.

COUNSEL FOR APPELLEE, BRITNEY BAILEY: Britney Bailey, pro se.

COUNSEL FOR APPELLEE, DUSTIN BAILEY: Dustin Bailey, pro se.

COUNSEL FOR APPELLEE, ELEANOR W. BAILEY: Eleanor W. Bailey, pro se.

COUNSEL FOR APPELLEE, KAREN BAILEY HART: Karen Bailey Hart, pro se.

COUNSEL FOR APPELLEE, DANNY HART: Danny Hart, pro se.

COUNSEL FOR APPELLEE, ADDISON BAILEY: Addison Bailey, pro se.

COUNSEL FOR APPELLEE, LESLIE SPARKS: Leslie Sparks, pro se.

OPINION OF THE COURT BY JUSTICE KELLER

Plaintiff, Ellington, filed a complaint and petition for declaration of rights against Defendant, Becraft, and other parties in Bath County regarding a passway known as Smokey Hollow Road. Ellington asked that this road be recognized as a county road, public passway, or easement. The case was tried before the Court, without a jury, and the Court entered judgment against the Defendant, finding that Smokey Hollow Road was a county road, a public passway, and that Ellington had acquired an easement by prescription. The Court of Appeals reversed, holding that Ellington had failed to meet his burden in proving the existence of any county road, public passway, or easement. Ellington then sought review from this Court. For the reasons discussed herein, we affirm in part, although on different grounds, and reverse in part the opinion of the Court of Appeals.

I. BACKGROUND

William Ellington obtained full interest to his property on what is known as Smokey Hollow Road in Bath County in 1995. The property was initially purchased by his uncle in 1954, passed to his aunt and mother by will, and then passed partially to him by will after the passing of his mother and then he obtained full interest in the property by will after his aunt's death in 1995. As a child, he visited the property while his uncle owned it. He did not start visiting again after his uncle's death until he obtained full ownership in 1995. He visited the property one to two times a year until 2004. In 2004, Harlan Becraft purchased his property on Smokey Hollow Road and erected a gate across the road, limiting Ellington's access to his property. Ellington testified that, before Becraft erected the gate, he had never been denied access across the road by any other previous owner.

Ellington brought suit against Becraft in 2010 alleging that Becraft had no right to limit Ellington's access to this road. Ellington stated that Smokey Hollow Road was, in fact, a county road; in the alternative, Ellington alleged that Smokey Hollow Road was either a public road or passway, or that he had acquired an easement of some kind over the pathway.

The trial court entered findings of fact and conclusions of law finding that the road was a county road, public road, and easement by prescription. The Court of Appeals reversed on all findings, holding that Ellington had failed to meet his burden in proving Smokey Hollow Road was a county road, public road, or any kind of easement. Ellington then moved this Court for discretionary review, which we granted.

II. STANDARD OF REVIEW

Under Kentucky Rule of Civil Procedure (CR) 52.01, "[i]n all actions tried upon the facts without a jury ..., the court shall find the facts specifically and state separately its conclusions of law thereon and render an appropriate judgment[.]" Upon review, "[f]indings of fact[ ] 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.

Our first determination upon appeal, therefore, is to determine whether the trial court's findings of fact are clearly erroneous. See id. A trial court's findings are not clearly erroneous if they are supported by substantial evidence. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). " ‘[S]ubstantial evidence’ is ‘[e]vidence that a reasonable mind would accept as adequate to support a conclusion’ and evidence that, when ‘taken alone or in the light of all the evidence, ... has sufficient probative value to induce conviction in the minds of reasonable men.’ " Id. (quoting Black's Law Dictionary 580 (7th ed. 1999) and citing to Kentucky State Racing Comm'n v. Fuller, 481 S.W.2d 298, 308 (Ky. 1972) and Blankenship v. Lloyd Blankenship Coal Co., 463 S.W.2d 62 (Ky. 1970) ).

If the trial judge's findings are supported by substantial evidence, "then the appellate court's role is confined to determining whether those facts support the trial judge's legal conclusion." Barber v. Bradley, 505 S.W.3d 749, 754 (Ky. 2016) (quoting Commonwealth v. Deloney, 20 S.W.3d 471, 473-74 (Ky. 2000) ). In this review of legal conclusions, we conduct a de novo review. Barber, 505 S.W.3d at 754 (citing Sawyers v. Beller, 384 S.W.3d 107, 110 (Ky. 2012) ).

III. ANALYSIS

A. COUNTY ROAD

A county road, pursuant to Kentucky Revised Statute (KRS) 178.010 is a "public road[ ] which ha[s] been formally accepted by the fiscal court of the county as a part of the county road system, or private roads, streets, or highways which have been acquired by the county [by gift for public purposes] ..." "Since ... 1914, a formal order of the fiscal court has been required to establish a county road." Kentucky Props. Holding LLC v. Sproul, 507 S.W.3d 563, 569 (Ky. 2016) (citing Sarver v. Allen Cnty., 582 S.W.2d 40, 41 (Ky. 1979) (citing Rose v. Nolen, 166 Ky. 336, 179 S.W. 229, 230 (1915) )).

A road can be deemed public without "automatically" being considered a "county road." Sproul, 507 S.W.3d at 569. In other words, a county road is a statutory creation, rather than an equitable one such as a public road or easement. This distinction is for the simple policy that "[a] county should not be held responsible for maintenance of a road which happens to become public through a process over which it has no control." Cary v. Pulaski Cnty. Fiscal Court, 420 S.W.3d 500, 508 (Ky. App. 2013) (citing Sarver, 582 S.W.2d at 41 ).

Both parties stipulated that the first one-tenth of a mile on Smokey Hollow Road, extending from Oakley Pebble Road, was a county road. However, the parties disputed that the road past that point was ever a county road as officially adopted by Bath County. The trial court relied upon testimony from witnesses regarding the use of the road; county maintenance of the road; and public and historical perception of the road to make its determination that Smokey Hollow Road is a county road. Our review on this issue is limited to the application of law and we therefore apply the de novo standard.

The trial court's legal analysis is more appropriate for the determination of whether a public road or passway was created by prescription. In contrast, the creation of a county road must be by formal acceptance of the county in which the road is located. We accept that the initial one-tenth portion of the road from Oakley Pebble Road is a county road, as stipulated by the parties. And if the extent of Ellington's case was limited to that portion of Smokey Hollow Road, then the stipulation would have been sufficient to meet Ellington's burden in establishing a county road.

However, Ellington alleged that Smokey Hollow Road extended all the way back across the Becraft property, further than agreed and stipulated by the parties. The Court of Appeals correctly noted that its analysis was limited to the disputed portion of the road. Thus, Ellington had the burden of proving the existence of a county road for the entire length that he alleged. He failed to provide any formal or official notice or proof that Bath County had ever adopted the entirety of Smokey Hollow Road as a county road. Simply because part of a pathway is a county road does not automatically lead to the conclusion that the entire passage is, or ever was, a county road.

A county road must be proven by such formal or official action of the county; "before a road open to the public shall be recognized as a county road, it must have been established by order of court." Illinois Cent R. Co. v. Hopkins Cnty., 369 S.W.2d 116, 117 (Ky. 1963) (citing Rose , 179 S.W. 229 ). Although other potential rights of passage may be created without such formal action, as will be discussed herein, a county road is a county creation and must be proven as such.¹ Therefore, Ellington's claim must fail and the trial court erred in finding the existence of a county road.

Additionally, the trial court's reliance upon KRS 178.070 regarding discontinuance of a county road is also misplaced. Ellington failed to prove there was ever a county road beyond the stipulated one-tenth of a mile. Thus, discontinuance of a county road was irrelevant because there was no proof there was ever a county road to discontinue. On this issue, we therefore affirm the Court of Appeals holding that the passway over the Becraft property is not a county road as a matter of law.

B. PUBLIC ROAD

"[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...