Holbrook v. Taylor

• Decision Date: 23 January 1976
• Citation: 532 S.W.2d 763
• Parties: J. S. HOLBROOK and Lula P. Holbrook, his wife, Appellants, v. Ben TAYLOR and Edna Taylor, his wife, Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 763

532 S.W.2d 763

J. S. HOLBROOK and Lula P. Holbrook, his wife, Appellants, v. Ben TAYLOR and Edna Taylor, his wife, Appellees.

Supreme Court of Kentucky.

Jan. 23, 1976.

Harry M. Caudill, Whitesburg, for appellants.

Ronald G. Polly, Polly & Craft, Whitesburg, for appellees.

STERNBERG, Justice.

This is an action to establish a right to the use of a roadway, which is 10 to 12 feet wide and about 250 feet long, over the unenclosed, hilly woodlands of another. The claimed right to the use of the roadway is twofold: by prescription and by estoppel. Both issues are heatedly contested. The evidence is in conflict as to the nature and type of use that had been made of the roadway. The lower court determined that a right to the use of the roadway by prescription had not been established, but that it had been established by estoppel. The landowners, feeling themselves aggrieved, appeal. We will consider the two issues separately.

In Grinestaff v. Grinestaff, Ky., 318 S.W.2d 881 (1958), we said that an easement may be created by express written grant, by implication, by prescription, or by estoppel. It has long been the law of this commonwealth that '(a)n easement, such as a right of way, is created when the owner of a tenement to which the right is claimed to be appurtenant, or those under whom he claims title, have openly, peaceably, continuously, and under a claim of right adverse to the owner of the soil, and with his knowledge and acquiescence, used a way over the lands of another for as much as 15 years.' Flener v. Lawrence, 187 Ky. 384, 220 S.W. 1041 (1920); Rominger v. City Realty Company, Ky., 324 S.W.2d 806 (1959).

In 1942 appellants purchased the subject property. In 1944 they gave permission for a haul road to be cut for the purpose of moving coal from a newly opened mine. The roadway was so used until 1949, when the mine closed. During that time the appellants were paid a royalty for the use of the road. In 1957 appellants built a tenant house on their property and the roadway was used by them and their tenant. The tenant house burned in 1961 and was not replaced. In 1964 the appellees bought their three-acre building site, which adjoins appellants, and the following year built their residence thereon. At all times prior to 1965, the use of the haul road was by permission of appellants. There is no evidence of any probative value which would indicate that the use of the haul road during that period of time was either adverse, continuous, or uninterrupted. The trial court was fully justified, therefore, in finding that the right to the use of this easement was not established by prescription.

As to the issue on estoppel, we have long recognized that a right to the use of a roadway over the lands of another may be established by estoppel. In Lashley Telephone Co. v. Durbin, 190 Ky. 792, 228 S.W. 423 (1921), we said:

'Though many courts hold that a licensee is conclusively presumed as a matter of law to know that a license is revocable at the pleasure of the licensor, and if he expend money in connection with his entry upon the land of the latter, he does so at his peril * * *, yet it is the established rule in this state that where a license is not a bare, naked right of entry, but includes the right to erect structures and acquire an interest in the land in the nature of an easement by the construction of improvements thereon, the licensor may not revoke the license and restore his premises to their former condition after the licensee has exercised the privilege given by the license and erected the improvements at considerable expense; * * *.'

In Gibbs v. Anderson, 288 Ky. 488, 156 S.W.2d 876 (1941), Gibbs claimed the right, by estoppel, to the use of a roadway over the lands of Anderson. The lower court denied the claim. We reversed. Anderson's immediate predecessor in title admitted that he had discussed the passway with Gibbs before it was constructed and had agreed that it might be built through his land. He stood by and saw Gibbs expend considerable money in this construction. We applied the rule announced in Lashley Telephone Co. v. Durbin, supra, and reversed with directions that a judgment be entered granting Gibbs the right to the use of the passway.

In McCoy v. Hoffman, Ky., 295 S.W.2d 560 (1956), the facts are that Hoffman had acquired the verbal consent of the landowner to build a passway over the lands of the owner to the state highway. Subsequently, the owner of the servient estate sold the property to McCoy, who at the time of the purchase was fully aware of the existence of the roadway and the use to which it was being put. McCoy challenged Hoffman's right to use the road. The lower court found that a right had been gained by prescription. In this court's consideration of the case, we affirmed, not on the theory of prescriptive right but on the basis that the owner of the servient estate was estopped. After announcing the rule for establishing a right by prescription, we went on to say:

'* * * On the other hand, the right of revocation of the license is subject to the qualification that where the licensee has exercised the privilege given him and erected improvements or made substantial expenditures on the faith or strength of the license, it becomes irrevocable and continues for so long a time as the nature...