Gosney v. Glenn, No. 2004-CA-000169-MR.

• Court: United States State Supreme Court (Kentucky)
• Writing for the Court: Miller
• Citation: 163 S.W.3d 894
• Parties: Michael D. GOSNEY; Donna R. Gosney, Appellants, v. Donald GLENN; Angela Glenn; Rich Glenn, Appellees.
• Docket Number: No. 2004-CA-000965-MR.,No. 2004-CA-000169-MR.
• Decision Date: 15 April 2005

163 S.W.3d 894 Michael D. GOSNEY; Donna R. Gosney, Appellants,
v.
Donald GLENN; Angela Glenn; Rich Glenn, Appellees. No. 2004-CA-000169-MR. No. 2004-CA-000965-MR. Court of Appeals of Kentucky. April 15, 2005.

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David A. Koenig, Florence, KY, for appellants.

Michael T. Sutton, Edgewood, KY, for appellees.

Before COMBS, Chief Judge; McANULTY, Judge; MILLER, Senior

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Judge.¹

OPINION

MILLER, Senior Judge.

Michael D. Gosney and Donna Gosney appeal from judgments of the Kenton Circuit Court determining that they do not have the right to use a passageway crossing the appellees' property as an access way to reach their property and awarding damages for their trespass onto the appellees' property. The appellants claim that they are entitled to use the passageway on the basis of easement by estoppel; easement by necessity; and on the basis that the passageway is an unabandoned county road. For the reasons stated below, we affirm.

By deed dated May 22, 2001, Appellants Michael and Donna Gosney, husband and wife, acquired a 10.7-acre tract of property located in Morningview, Kentucky. The appellants purchased their 10.7-acre tract from Ernest and Sandra Gosney, Michael's brother and sister-in-law.

Appellees Donald and Angela Glenn, husband and wife, reside at 14471 Stephenson Road, Morningview, Kentucky, on a one-acre tract at the terminus of the paved portion of Stephenson Road. They acquired their one-acre tract by deed dated May 20, 1998, from Donald's parents, Rich Glenn and Esther Glenn. Donald and Angela also own an adjacent unimproved 7.9-acre tract acquired from Rich and Esther Glenn by deed dated June 18, 1998. This property is to the north and west of Donald and Angela's one-acre tract.

Rich Glenn and Esther Glenn were the owners of, and resided on, a 20.484-acre tract acquired by deed dated September 1, 1967. This tract was the source of Donald and Angela's one-acre tract. Esther Glenn died prior to the filing of this action; Rich Glenn, who was a party to the circuit court proceedings and is named as an appellee in the present appeal, died on November 1, 2003, after the filing of this action.

The Gosneys contend that they are entitled to traverse a passageway running across the Glenn property in order to reach their ten-acre tract to the north. The disputed portion of the passageway begins at the end of the paved portion of Stephenson Road at the junction of the two Glenn tracts. The paved portion of Stephenson Road runs to the northwest and terminates at the southwest boundary of Michael and Donna's one-acre tract. It is undisputed that this portion of the access way is a county road maintained by the Kenton County Road Department. At the conclusion of the paved portion of Stephenson Road, the passageway runs toward the northeast for approximately 280 feet to an old gate (referred to in the record as "the first gate") at a common corner of the two Donald and Angela Glenn tracts and the Rich Glenn tract.

After the first gate, the passageway turns back to the northwest for a distance, and then to the north. There is a discernable passageway beyond the first gate, which serves as the boundary between the Donald and Angela Glenn 7.876-acre tract and the Rich Glenn tract for approximately 831.17 feet. The Gosney tract is accessible from the south by this passageway.

According to the Gosneys, Michael first began traveling to the 10.7-acre tract in contemplation of purchasing it in early 1998. Michael testified that beginning at

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that time he would access the 10.7-acre tract by the disputed passageway. Michael tract by the disputed passageway. Michael testified that he believed he had a right to use the passageway because Rich Glenn had indicated to him that the passageway was the right-of-way of Old Stephenson Road, which Michael interpreted to mean that the general public had a right to use the passageway. Gosney testified that in the following years he accessed the property by this route on a regular basis and made clear to the appellees that it was his intent to buy the property and construct a residence thereon.

In December 2001, after the Gosneys had purchased their tract and had commenced improvements to the passageway, Donald and Angela sent a letter to the Gosneys advising them that they could no longer travel on the disputed passageway, and informing them that any such use of the passageway would be considered as a trespass. It appears, however, that the Gosneys continued to make use of the passageway, and, further, commenced making improvements to it.

On July 25, 2002, Donald, Angela, and Rich Glenn filed a complaint in Kenton Circuit Court seeking to enjoin the Gosneys from using the passageway and seeking damages for their alleged trespass.

The Gosneys filed their answer and counterclaim which, as amended, alleged that the passageway is a county road or, alternatively, that they were lawfully entitled to use the passageway based upon prescriptive easement, easement by necessity, and easement by estoppel.

Following a bench trial, on August 14, 2003, the trial court rendered its Findings of Fact, Conclusions of Law, and Judgment. The trial court determined that the passageway was not a county road, and that the Gosneys did not have a right to traverse the passageway based upon easement by necessity, easement by prescription, or easement by estoppel. On December 23, 2003, the trial court entered an order making its August 14, 2003, order final and appealable. The Gosneys subsequently filed an appeal of the December 23, 2003, order (Appeal 2004-CA-000169-MR). Following a hearing concerning damages as a result of the Gosneys' trespass onto the passageway, on April 13, 2004, the trial court entered an order awarding the Glenns total damages of $2,020.00. The Gosneys subsequently appealed the order setting damages (Appeal 2004-CA-000965-MR).

First, the Gosneys contend that the trial court erred by failing to find an easement by estoppel across the passageway in their favor.

We begin by noting that this case was tried by the circuit court sitting without a jury. It is before this Court upon the trial court's findings of fact and conclusions of law and upon the record made in the trial court. Accordingly, appellate review of the trial court's findings of fact is governed by the rule that such findings shall not be set aside unless clearly erroneous. A factual finding is not clearly erroneous if it is supported by substantial evidence. Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky.1998); Uninsured Employers' Fund v. Garland, 805 S.W.2d 116, 117 (Ky.1991). Substantial evidence is evidence, when taken alone or in light of all the evidence, has sufficient probative value to induce conviction in the mind of a reasonable person. Golightly, 976 S.W.2d at 414; Sherfey v. Sherfey, 74 S.W.3d 777, 782 (Ky.App.2002). Ky. R. Civ. P. (CR) 52.01; Largent v. Largent, 643 S.W.2d 261 (Ky.1982). The trial court's conclusions of law, however, are subject to independent de novo appellate determination. A & A Mechanical, Inc. v. Thermal Equipment Sales, Inc.,

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998 S.W.2d 505, 509 (Ky.App.1999); Morganfield National Bank v. Damien Elder & Sons, 836 S.W.2d 893 (Ky.1992).

Generally, an easement may be created by express written grant, implication, prescription or estoppel. Loid v. Kell, 844 S.W.2d 428, 429...