Meade v. Ginn

• Decision Date: 18 November 2004
• Docket Number: No. 2002-SC-0518-DG.,2002-SC-0518-DG.
• Citation: 159 S.W.3d 314
• Parties: Richard MEADE; and Earnestine Meade, Appellants, v. Michael GINN; and Jennifer Ginn, Appellees.
• Court: United States State Supreme Court — District of Kentucky

159 S.W.3d 314

Richard MEADE; and Earnestine Meade, Appellants, v. Michael GINN; and Jennifer Ginn, Appellees.

No. 2002-SC-0518-DG.

Supreme Court of Kentucky.

November 18, 2004.

Rehearing Denied April 21, 2005.

Kimberly Leet Razor, Flemingsburg, KY, Counsel for Appellants.

Darrell K. Ruark, Flemingsburg, KY, Counsel for Appellees.

COOPER, Justice.

Appellants, Richard and Earnestine Meade, own a 131.045 acre tract of land in the Hilltop community of Fleming County, Kentucky. The northern boundary of this tract fronts on Kentucky Highway 1123. A substantial portion of its western boundary borders the eastern edge of a fifty-foot-wide roadway located on a 78.181 acre tract of land owned by Appellees, Michael and Jennifer Ginn. The roadway connects Highway 1123 to an old thirty-foot-wide roadway that crosses another 18 acre tract owned by the Ginns and leads to the southern portion of the Meades' property that borders on or near the North Fork of the Licking River. The Meades claim that the terrain of their property prevents easy access between its northern and southern portions and, consequently, they used both roadways for many years to access the southern portion of their property for farming purposes. In 1998, the Ginns closed the fifty-foot roadway by erecting a gate at its terminus with Highway 1123. The Meades filed this action in the Fleming Circuit Court claiming easements over both roadways and demanding compensatory damages for their loss of access to the southern portion of their property. The Ginns admit the Meades own an easement over the thirty-foot roadway that traverses the 18 acre tract but contest the Meades' right to use any portion of the fifty-foot roadway to reach that easement. The Fleming Circuit Court held that the Meades never acquired an easement over the fifty-foot roadway because no such easement was mentioned in their 1983 deed. The Court of Appeals disagreed, but held that when the Ginns became owners of both the 18 acre tract and the 78.181 acre tract, the dominant and servient tenements merged, thereby extinguishing the easement and the Meades' right to use it. For the reasons explained herein, we conclude that the right to use the fifty-foot roadway has been an easement appurtenant to the Meades' property since September 1, 1978, and, in that respect, the Meades' property is the dominant tenement and the Ginn's 78.181 acre tract is the servient tenement. Since the Ginns have never owned the Meades' property, the easement appurtenant to that property has never merged with the servient tenement.

I. THE 18 ACRE TRACT AND EASEMENTS.

These three tracts, i.e., the Meades' 131.045 acre tract and the Ginns' 18 acre and 78.181 acre tracts, were all originally part of an 800 acre farm sold by W.M. Wheeler on December 30, 1975, to Ersel Verdell Meade and Sherry R. Meade, his wife, Richard Gale Meade (Appellant) and Linda Louise Meade, his then wife, Kenneth Dale Meade and Diane Ellen Meade, his wife, Lanny Ray Meade and Jill Ellen Meade, his wife, Oliver G. Berry, single, and Tate A. Meade and Opha Meade, his wife, referred to collectively as the "Meade families." Each separate family unit owned an undivided 1/6th interest in the entire 800 acres.

The first sell-off from the original 800 acres occurred on December 15, 1977, when the Meade families, including Appellant, Richard Meade, deeded the 18-acre tract now owned by the Ginns to Licking Pork, Inc. The remainder of the original 800 acres completely surrounded this almost square-shaped tract, on which Licking Pork subsequently established a hog farm. The 18 acre tract straddled an old thirty-foot-wide roadway that ran from the southern portion of the 800 acre tract, now part of the 131.045 acre tract owned by Richard and Earnestine Meade, to its northern boundary with Highway 1123. Although the December 15, 1977, deed from the Meade families to Licking Pork, Inc., is not found in this record, the parties agree that the deed reserved an easement in favor of the "grantors herein [Meade families], their heirs and assigns, for the purpose of crossing said 18 acre tract from its entrance road."

Also on December 15, 1977, the Meade families, including Appellant Richard Meade, entered into a written agreement with Licking Pork, Inc., that provided, inter alia:

[W]hereas, Grantors have this date sold and conveyed to Grantee an eighteen acre portion of Grantors' farm located on Kentucky Highway No. 1123 in Fleming County, Kentucky; and Whereas, the parties desire to agree as to appurtenant rights of access, utility easements, water easement, house location, fencing, and other related matters, before surveys have been completed;

NOW THEREFORE, in further consideration of the $20,000 paid this date by Grantee unto Grantor, it is hereby agreed as follows:

...

(2) Entrance Road and Utility Easement. Grantors will upon demand convey by Grantee's survey description an unencumbered marketable easement by general warranty deed for purposes of free ingress and egress and utility services between Kentucky Highway No. 1123 and said eighteen acre tract this date conveyed, said easement to be fifty feet wide and located as determined by Grantee in a reasonably direct route from highway to Grantee's said property. Grantee shall construct and maintain a roadway on said easement, and may construct, repair and replace utility services over, under and through said easement, as well as grant easements within said roadway to utilities for servicing Grantee's said property, provided that Grantors' abutting property is not thereby affected or encumbered. Grantors, their heirs and assigns, may use said roadway in common with Grantee and may cross over said easement between their abutting fields, provided that Grantors may not obstruct or otherwise interfere with Grantee's use of said easement as aforesaid.

(Emphasis added.) The agreement also required the Meade families to convey, on demand, one additional acre for a residential lot, another lot on the Licking River for construction of a water pumping station, and a water line easement from the pumping station to the 18 acre tract. The agreement was filed of record in Deed Book 145, page 274, in the office of the Fleming County Clerk.

On September 1, 1978, citing "paragraph 2 of Agreement recorded in Fleming County Deed Book 145, page 274," and "in consideration of said Agreement," the Meade families, including Appellant Richard Meade, deeded to Licking Pork, Inc., "[a] certain fifty foot easement connecting Kentucky Highway No. 1123 with Tract A [the 18 acre tract], the centerline of which is described as [described therein by metes and bounds]." The deed also conveyed a one acre residential lot, a lot on the Licking River for a water pumping station, and a water line easement from the pumping station to the 18 acre tract. The deed contained the following recitation:

Reference is hereby made to said Agreement dated 15 December 1977 and recorded in Fleming County Deed Book 145, page 274 for the rights and duties of the parties with respect to the above described property and easements.

(Emphasis added.)

Thus, the documents executed by the Meade families and Licking Pork, Inc., not only created a fifty-foot easement across the remainder of the Meade families' 800 acre tract in favor of Licking Pork, but also reserved to the Meade families an easement over the thirty-foot roadway across Licking Pork's 18 acre tract and the right to use the fifty-foot easement "in common with Grantee." Since owners of a servient tenement automatically retain the right to use their own property so long as their use does not interfere with the use of the dominant tenement, Holbrook v. Hammond, 302 Ky. 10, 192 S.W.2d 746, 748 (1946) ("It is not necessary that the grantor should expressly reserve any right which he may exercise consistently with a fair enjoyment of the grant. Such rights remain with him, because they are not granted."), the Meade families would have retained the right to use the fifty-foot roadway even without the agreement. The parties, therefore, must have intended to create a transferable reciprocal or cross easement in favor of the Meade families by their additional agreement vesting in the "grantors, their heirs and assigns" the right to use the fifty-foot roadway "in common with Grantee." Cf. Furlow v. Sturgeon, Ky., 436 S.W.2d 485, 486 (1968) (contracts must be construed from the standpoint of the parties, and the terms employed must be given effect from that standpoint). Reciprocal or cross easements are created by contract between adjacent landowners for the common use of property to enhance the usefulness and value of both properties, usually with respect to ingress and egress. The result is the creation of easements appurtenant to both properties enforceable by subsequent grantors of each original owner. Rosenbloom v. Grossman, 351 S.W.2d 735, 738 (Mo.1961); 25 Am.Jur.2d Easements and Licenses in Real Property § 21 (1996); cf. Romar Dev. Co., Inc. v. Gulf View Mgmt. Corp., 644 So.2d 462, 465 (Ala.1994) ("[T]he usual case presents the `reciprocal easement' situation, where adjacent landowners contract for the common use of some property or area...."). Our predecessor court recognized the concepts of both reciprocal and cross easements.

There can be no dispute of the easement claimed being annexed to the lot conveyed by Graham, Howarth & Graham to Newton, and consequently following it into the hands of appellant, for it was not only in express terms thereby granted, but in the subsequent deed to Atchinson specially reserved, in place or consideration of which the Newton lot was charged with a reciprocal easement ever since enjoyed.

Hobson v. Cartwright, 93 Ky. 368, 20 S.W. 281, 281 (1892) (agreement establishing set-back lines and building heights).

"[T]he decided weight of authority establishes the position that an agreement under the hands and seals of such parties containing the usual

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