Kircheimer v. Carrier, 2012–SC–000716–DG.

• Decision Date: 23 October 2014
• Docket Number: No. 2012–SC–000716–DG.,2012–SC–000716–DG.
• Citation: 446 S.W.3d 224
• Court: United States State Supreme Court — District of Kentucky
• Parties: Sheila T. KIRCHEIMER and Thomas Kircheimer, et al., Appellants v. Regina S. CARRIER and Carl Wayne Carrier, Appellees.

446 S.W.3d 224

Sheila T. KIRCHEIMER and Thomas Kircheimer, et al., Appellants

v.Regina S. CARRIER and Carl Wayne Carrier, Appellees.

No. 2012–SC–000716–DG.

Supreme Court of Kentucky.

Oct. 23, 2014.

Donald Wesley Cottrell, Kenneth Clay Ratley, Leitchfield, KY, for appellants.

John E. Spainhour, Jr., Rachel Tomara Caudel, Shepherdsville, KY, for appellees.

Opinion

Opinion of the Court by Justice ABRAMSON.

Subdivision developers Regina and Carl Wayne Carrier appealed from an order of the Breckinridge Circuit Court declaring a subdivision roadway a private road and enjoining the Carriers from allowing homeowners on nearby property to install driveways and culverts which would open onto that road. The Court of Appeals reversed the trial court, concluding that the disputed road, Sandy Beach Lane, was a public roadway that was dedicated by estoppel involving plat. Having concluded the Court of Appeals erred in applying that doctrine to the facts presented, we reverse the Court of Appeals and reinstate the order of the Breckinridge Circuit Court.

RELEVANT FACTS

This appeal concerns a dispute over a roadway situated within Sandy Beach Subdivision in rural Breckinridge County. Developers Friedell Hinton, Barbara Hinton, and Charles L. Martin purchased the land that would become Sandy Beach Subdivision from James F. O'Donoghue in 1989. Subsequently, a one-third interest in the land was assigned to Donald Martin. Thereafter, Friedell Hinton constructed Sandy Beach Lane on the undeveloped land. The developers recorded the plat for Sandy Beach Subdivision with the Breckinridge County Clerk's Office on August 8, 1990. The subdivision plat contained a note which stated: “Developer retains a 1.0 ft. strip of land between existing road and the James F. (Buddy) & Danny O'Donoghue property.” The remaining O'Donoghue property consisted of a large parcel of land adjacent to Sandy Beach Subdivision.¹ A Deed of Declaration of Restrictions (“deed of restrictions”) for Sandy Beach Subdivision, recorded shortly thereafter on September 10, 1990, restated the above-quoted sentence regarding the developer's retention of the one-foot strip and contained the following maintenance provision:

In the event that a government body assumes responsibility for the maintenance of said road and utilities, the assessment shall be terminated, and all property owners shall grant such government body a forty (40) foot road easement, however, said easement shall not infringe upon the 1.0 foot strip of land between the roadway and the property of James F. O'Donoghue, which strip is reserved for Developer.

Deed of Declaration of Restrictions, ¶ 17.

Within one year, eleven lots in Sandy Beach Subdivision were sold. On October 6, 1991, the original developers assigned their interest to Sandy Beach Inc. Approximately eleven years later, in March 2002, Sandy Beach Inc. conveyed its interest in the remaining lots to Carl Wayne Carrier and Regina S. Carrier. The Carriers filed an amended deed of restrictions which contained a provision similar to paragraph 17, with the exception of the new language “without written permission from the developer or his assignee” replacing the above-quoted final clause “which strip is reserved by Developer.” In addition to the remaining lots in Sandy Beach Subdivision, the Carriers acquired a large parcel of adjacent land and began to develop two new subdivisions named “Taylor's Landing” and “Sandy Beach II.”² The one-foot strip of land referenced in the Sandy Beach Subdivision plat and its deed of restrictions physically separates Taylor's Landing and Sandy Beach II from Sandy Beach Lane. The Carriers then granted certain lot owners in the new subdivisions, Taylor's Landing and Sandy Beach II, the authority to build driveways over the one-foot strip of land in order to access Sandy Beach Lane.

On October 8, 2007, several lot owners³ in Sandy Beach Subdivision (the “Sandy Beach homeowners”) filed a petition for declaration of rights with the Breckinridge Circuit Court demanding a declaration that Sandy Beach Lane was a private roadway, and further seeking to enjoin the Carriers or any other lot owners in Taylor's Landing or Sandy Beach II from installing driveways or culverts on to Sandy Beach Lane. After taking evidence and hearing testimony from developers, lot owners, surveyors, and other witnesses, the trial court concluded that Sandy Beach Lane was a private road for the sole use and benefit of the lot owners in Sandy Beach Subdivision. The trial court also held that the one-foot strip of land was restricted in use and could not be used or traversed by the Taylor's Landing and Sandy Beach II lot owners to access Sandy Beach Lane.

The Carriers appealed the trial court's decision to the Court of Appeals, which reversed. The Court of Appeals held that the Sandy Beach Subdivision developers objectively intended for the road to be public as evidenced by the recording of the plat and the selling of lots, thereby dedicating the roadway by estoppel. The Court of Appeals further held that any restrictions on use of the one-foot strip of land were unenforceable against the Carriers.

The Sandy Beach homeowners appealed the Court of Appeals decision to this Court, where they assert that the easement granted for the use of Sandy Beach Lane cannot be enlarged by the Carriers or any other property owners in the adjacent subdivisions. They further contend that the intent of the original developers to keep Sandy Beach Lane private controls over dedication by estoppel involving plat. In response, the Carriers argue that dedication by estoppel controls over the intent of the developers and therefore the Court of Appeals correctly declared Sandy Beach Lane to be a public roadway. We now reverse the Court of Appeals and reinstate the order of the Breckinridge Circuit Court.

ANALYSIS

I. Sandy Beach Lane is a Private Roadway for the Use and Benefit of Lot Owners in Sandy Beach Subdivision.

The question of whether adjoining property owners in neighboring subdivisions should be enjoined from accessing Sandy Beach Lane turns in part on whether that road is public or private. The trial court held that the roadway was private, while the Court of Appeals concluded that it was public. The Court of Appeals based its decision on the principle of dedication by estoppel involving plat. While we acknowledge that a street may be dedicated for public use by dedication by estoppel involving plat,⁴ we conclude that Sandy Beach Lane was not dedicated by estoppel.

Kentucky courts have long recognized the principle of common-law dedication as a means of appropriating private land for public use. Consol. Realty Co. v. Richmond Hotel & Bldg. Co., 253 Ky. 463, 69 S.W.2d 985 (1934) ; Grinestaff v. Grinestaff, 318 S.W.2d 881 (Ky.1958). Generally, only the owner of the private land, or someone so authorized, may dedicate land for a public purpose. Givens v. Commonwealth, 244 S.W.2d 740 (Ky.1951). While dedication may be effectuated in a number of ways, the grantor's intent to dedicate is “essential to the validity” of the dedication. City of Owensboro v. Muster, 111 Ky. 856, 64 S.W. 840, 841 (Ky.1901). To that end, the dedication of land for use as a public street “rests primarily and basically upon the intention of the owner-dedicator [.]” Banks v. Wilhoite, 508 S.W.2d 580, 582 (Ky.1974) (emphasis added).

Because dedication is “a matter of intention,” there generally must be “an offer of property for public use and an acceptance thereof for that public use in order to create public use by dedication.” Graves Cnty. ex rel. Robbins v. City of Mayfield, 305 Ky. 374, 204 S.W.2d 369–70 (1947).⁵ To ascertain a grantor's intent, one must look to the acts of the grantor that “clearly and unequivocally [manifest]” an intent to dedicate “or such as to estop him from denying that such was his intent.” Hofgesang v. Woodbine Ave. Realty Co., 414 S.W.2d 580, 585 (Ky.1967). One method of common-law dedication is dedication by estoppel involving plat, wherein the act of subdividing lots on a plat generally constitutes an offer to dedicate the roads appearing on the plat as public, and the sale of a lot as depicted on the plat completes the dedication. City of Middlesboro v. Kentucky Utilities Co., 237 Ky. 523, 35 S.W.2d 877, 880 (1931). The Court of Appeals relied upon this principle when it concluded that the original developers of Sandy Beach Subdivision, having failed to expressly designate Sandy Beach Lane as a private road on the plat, dedicated the road as public by estoppel involving plat.

In applying the dedication by estoppel involving plat doctrine, the Court of Appeals primarily referred to legal treatises and three older Kentucky cases: City of Middlesboro, 35 S.W.2d at 877, Morrow v. Richardson, 278 Ky. 233, 128 S.W.2d 560 (1939), and Cassell v. Reeves, 265 S.W.2d 801 (Ky.1954). Morrow simply reiterates the general rule regarding the recording of subdivision plats with streets as indicative of a public dedication, however, Cassell, as quoted by the Court of Appeals states:

It is a settled principle that when a map or plat of a subdivided tract of land is exhibited or recorded and conveyances are made of the lots by reference thereto, the plat becomes a part of the deeds, and the plan shown thereon is regarded as a unity. And, nothing else appearing, it is held that all the streets, alleys, parks or other open spaces delineated on such map or plat have been dedicated to the use of the purchasers of the lots and those claiming under them as well as of the public.

Id. at 802 (emphasis supplied). As explained below, the “nothing else appearing” language is particularly significant. Moreover, Cassell continues by noting that streets, alleys, parks and open spaces on a plat are presumed to “add value to all the lots embraced in the general plan and that the purchasers invest their money upon the faith of this assurance that such open spaces, particularly access ways, are not to be the private...