Preview:

RENDERED: December 29, 2000; 2:00 p.m. NOT TO BE PUBLISHED

C ommonwealth O f K entucky C ourt O f A ppeals
NO. 1999-CA-002292-MR

LAWRENCE BORNE

APPELLANT

v.

APPEAL FROM FRANKLIN CIRCUIT COURT HONORABLE WILLIAM L. GRAHAM, JUDGE ACTION NO. 97-CI-00414

EDGAR BENNETT, JR.

APPELLEE

OPINION AFFIRMING ** ** ** ** ** BEFORE: JOHNSON, MILLER AND SCHRODER, JUDGES. Lawrence Borne has appealed from a judgment of

JOHNSON, JUDGE.

the Franklin Circuit Court entered on September 3, 1999, in a declaration of rights action filed by appellee Edgar Bennett, Jr., as a result of an easement dispute. Having concluded that

the judgment which permits Bennett, as owner of the dominant tenement, to modify an existing passway over the servient tenement, owned by Borne, so as to permit Bennett ingress and

egress to his property by automobile is not erroneous, we affirm. Bennett filed his petition for declaration of rights on March 12, 1997. 1999. A trial before the court was held on June 30,

On September 3, 1999, the trial court entered a judgment

granting Bennett's petition to modify an existing passway over Borne's property. The trial court's findings of fact in the case

are summarized below. In March 1996, Bennett acquired a tract of land comprising approximately 77 acres in northern Franklin County near U.S. Highway 421 (Bennett tract). The Bennett tract adjoins

a 198.49 acre tract, owned by Lawrence Borne (Borne tract). Borne acquired his tract, in partnership with his father, in February 1973. The Borne tract has frontage on U.S. Highway 421,

while the Bennett tract has no frontage or direct access to any public road. Each party's chain of title includes references to a "road or passway" which provides the Bennett tract with access from U.S. Highway 421 through the Borne tract. Since 1955, the

deeds in the Bennett tract chain of title have contained a clause conveying "all right, title and interest in and to the road or passway, including the land used in connection therewith, leading from the premises hereinabove described to Highway 421." Since

1973, the deeds in the Borne tract chain of title, with one exception,1 have contained the following reservation: "Said land is conveyed subject to all existing easements on and across the same appearing of record, and also the passway (which is not recorded) from US 421 to the lands of Newton Hoover."2 The deeds

The exception is the last deed in the chain of title from Borne's parents to Borne. Borne concedes that the omission of the passway in this deed was a mistake.
2

1

Newton Hoover previously owned the Bennett tract. -2-

do not describe the dimensions or the location of the passway or restrict its use. The location of the existing passway is undisputed. is a narrow, unpaved, ungraveled passage that runs from U.S. Highway 421 along the southern boundary of the Borne tract to Flat Creek. The passway enters Flat Creek, makes a 90 degree It

turn to the north (right) into the bed of Flat Creek where it runs approximately 100 feet, then it comes out of the creek bed to the southwest and up to the Bennett tract near a large walnut tree. In the past, use of the passway has been limited to farm The

equipment, logging equipment, and four-wheel drive vehicles.

passway is not adequate for automobile use, particularly in the creek bed. Flat Creek is a blue line stream in which there is

often water, ice, or rough terrain. There has not been a house on the Bennett tract since at least the 1930's; however, Bennett now desires to build a house on the tract to be used as his residence. constructed a barn on his property. Upon his acquisition of the property, Bennett approached Borne about conveying an easement to facilitate access to the Bennett tract through a new and improved route on the north end of the Borne tract (the north entrance). Borne agreed He has already

to the new route with certain stipulations as to Bennett's liability for construction and maintenance of the roadway and bridges. Bennett hired Robert Semones, a surveyor, to survey a

route for improved access using the north entrance. Subsequently, Bob Tillett of the State Highway

-3-

Department informed Bennett that the proposed new north entrance off U.S. Highway 421 did not meet Highway Department standards for sight distance, and that he would not recommend that a permit be issued. Bennett did not appeal the Highway Department's

decision that the north entrance would not meet state sight distance requirements. According to the findings of the trial

court, Bennett abandoned the proposed north entrance because 1) it would require him to construct an additional roadway around the edge of a steep hill for approximately one-fourth mile; 2) it would require him to construct a $20,000.00 bridge across Flat Creek, as compared with the $2,000.00 to $2,500.00 cost of the low-water crossing and pipe; 3) it would require him to fill a large low area between U.S. Highway 421 and Flat Creek; 4) it would require him to construct a road on the northern-most portion of the Borne Tract which is most susceptible to flooding; and 5) the proposed entrance would be unsafe as it would not meet Highway Department sight distance requirements. Following the negative developments regarding the north entrance, Bennett proposed to improve the existing passway in order to facilitate ingress and egress by automobile. Bennett's

proposed improvements to the passway would require a low-water crossing across Flat Creek and a large pipe or culvert in a second creek. It was stipulated by the parties that Bennett has

obtained the necessary Highway Department permits and approvals for these proposed improvements. Gary Poole, a civil engineer and drainage expert, testified for Bennett concerning the effect of the proposed low-

-4-

water crossing on the Borne Tract.

His testimony was that there

would be a minimal impact on the severity of flooding in a 100year flood on Borne's large tobacco patch, which adjoins U.S. Highway 421. He testified that there are two primary sources of The first is located to the south

flooding to the Borne tract.

of the Borne tract on adjoining property, and the other is backwater created during heavy rains and originates at the point where Flat Creek and Goose Creek converge. Poole testified that

the proposed passway improvements would have no effect on the existing flooding conditions, and this testimony was uncontroverted. Poole did not study the impact of the proposed

north entrance versus the impact of the proposed improvements to the existing point of access at the south end of the large tobacco patch. He testified that the minimal increase in

flooding from the low water crossing over Flat Creek would be to the south and west. The parties' deeds do not state the width of the passway. Semones testified that the width of the existing

passway where it crosses the Borne tract near the southern end of Borne's large tobacco patch ranges from 10 to 20 feet. Bennett

seeks to expand the existing passway to 20 feet between U.S. Highway 421 and Flat Creek. Semones testified that a passway

width of 20 feet was generally required by the planning and zoning ordinance for any minor subdivision plat where the property to be served by the easement has no road frontage. Bennett testified that he has no intention of subdividing the Bennett Tract.

-5-

The 20-foot proposed passway runs along a fence that divides the Borne tract from the adjoining property to the south. Semones testified that the distance from the fence to the edge of the plowed tobacco field varies from 23 to 26 feet, and Bennett testified that it is 29 feet from the fence to the nearest tobacco plant. The proposed easement does not touch the actual

tobacco plants themselves, but does encroach on the plowed field. Furthermore, there was no proof that Borne would lose any marketable timber as the result of the new passway; however, construction of the low-water crossing may prohibit Borne from driving his tractor down the bed of Flat Creek to the south to access other portions of his property. Borne first contends on appeal that the trial court erred as a matter of law "by expanding, altering, rerouting, enlarging, and modifying the nature of use and construction of the easement over the Borne tract." We disagree. "The owners of

the easement and the servient estate have correlative rights and duties which neither may unreasonably exercise to the injury of the other."3 "The use of an easement must be reasonable and as

little burdensome to the landowner as the nature and purpose of the easement will permit. The nature and extent of an easement "Easements may

must be determined in light of its purposes."4

Commonwealth, Department of Fish & Wildlife Resources v. Garner, Ky., 896 S.W.2d 10, 13 (1995) (citing Higdon v. Kentucky Gas Transmission Corp., Ky., 448 S.W.2d 655 (1969)). Id. (citing Horky v. Kentucky Utilities Co., Ky., 336 S.W.2d 588 (1960); Farmer v. Kentucky Utilities Co., Ky., 642 S.W.2d 579 (1982); and Thomas v. Holmes, 306 Ky. 632, 208 S.W.2d 969 (1948)). -64

3

not be enlarged on or extended so as to increase the burden on or interfere with the servient estate."5 "However, the owner cannot

unreasonably interfere with the rights of the holder of the easement."6 The deeds to the Borne tract and the Bennett tract do not describe the location, dimensions, or restrictions regarding the use of the passway. "In such circumstances, reason and

authority dictate that the rights obtained by the dominant owner are those necessary for the reasonable and proper enjoyment of the easement." "By parity of reasoning, the owner of the

servient estate retains the right of full dominion and use of his land, except so far as a limitation of his right is essential to the fair enjoyment of the easement."7 "`Generally, the rule has been established that if an easement is granted or reserved in general terms which do not fix its location the owner of the servient estate has the right in the first instance to designate the location of the easement. The right, however, must be exercised in a reasonable manner with due regard to the rights of the owner of the dominant estate.'"8

Id. (citing City of Williamstown v. Ruby, Ky., 336 S.W.2d 544 (1960)). Id. (citing Ball v. Moore, 301 Ky. 779, 193 S.W.2d 425 (1946) and Smith v. Price, 312 Ky. 474, 227 S.W.2d 981 (1950)). Blair v. City of Pikeville, Ky., 384 S.W.2d 65, 67 (1964)(citing Maxwell v. McAtee, 9 B.Mon. (48 Ky.) 20; 28 C.J.S. Easements

Download 1999-ca-002292.pdf

Kentucky Law