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RENDERED: NOVEMBER 23, 2011; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals
NO. 2010-CA-001149-MR

ROE CREEK DEVELOPMENT, INC.

APPELLANT

v.

APPEAL FROM LAWRENCE CIRCUIT COURT HONORABLE JOHN DAVID PRESTON, JUDGE ACTION NO. 09-CI-00020

SAMUEL J. TILDEN ARNETT

APPELLEE

OPINION AFFIRMING IN PART AND VACATING IN PART ** ** ** ** ** BEFORE: ACREE AND STUMBO, JUDGES; LAMBERT,1 SENIOR JUDGE. ACREE, JUDGE: The issue before us is whether the Lawrence Circuit Court erred in concluding that appellee, Samuel J. Tilden Arnett, acquired an easement by prescription and estoppel across property owned by appellant, Roe Creek
1

Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute (KRS) 21.580.

Development, Inc. (Roe Creek). For the following reasons, we affirm in part and vacate in part. Facts and Procedure Roe Creek is a Kentucky corporation currently wholly owned by Lyonel Joffre, a Georgia resident. Roe Creek, and in turn Joffre, possess approximately 250 acres located on Roe Creek Road in Lawrence County, Kentucky (the "landfill property"). The landfill property was previously owned by Bill and Lou Davis. The Davises obtained the landfill property in 1976 and started the landfill. At that time, an unpaved driveway existed on the land. The driveway started at Roe Creek Road and extended southwest onto the landfill property for about a quarter mile. The Davises later extended the driveway south, deeper into the landfill property, creating the road currently in dispute. Shortly after opening the landfill, the Davises place a locked gate at the landfill property's entrance from Roe Creek Road to control access to the disputed road and the property. Arnett is the owner of real property located on Blaine Creek in a rural area of Lawrence County, Kentucky (the "Arnett property"). The Arnett property lies to the south of and partially adjoins the landfill property. Arnett's parents, Jack and Betty Arnett, first acquired the Arnett property in 1988 and subsequently granted Arnett a life estate. The Arnett property is unimproved and contains no buildings or structures.

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When Arnett's father acquired the Arnett property, the Davises provided him with a key to the landfill property's gate and granted him oral permission to hunt on the landfill property. Thereafter, Arnett's parents frequently used the disputed road to access the Arnett property, sometimes several times a week. Additionally, Arnett himself claimed that, from 1989 until 2008, he often used the disputed road to access the Arnett property. Arnett explained he used the Arnett property for a variety of outdoor activities, including hunting, riding allterrain vehicles (ATVs), and socializing. Both Arnett and his father hunted on the landfill property. In 1989, the Davises formed Roe Creek and conveyed all the landfill property to Roe Creek except for approximately ten acres known as the H-Coal. The Davises retained sole ownership of Roe Creek for about a year. They then sold Roe Creek, and its assets including the landfill property, to Bruce Davis. Davis operated the landfill until the early 1990s when the landfill closed. In 2008, Davis sold Roe Creek and its assets to Joffre, the current owner. Joffre immediately changed the lock on the gate to the landfill property, denying Arnett access to that property and, in turn, denying Arnett access to the Arnett property as well.2 Arnett subsequently brought suit claiming he obtained an easement by
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The Arnett property's deed indicates the property has access to a county road on the Blaine Creek side of the property (opposite from where the Arnett property adjoins the landfill property). However, the circuit court expressly found the county road referenced had not been used for approximately thirty years. Additionally, the trial judge along with counsel visited the Arnett property the day before trial. The trial judge stated in his findings of fact that it would be a significant overstatement to state there is actually a road to the Arnett property from the Blaine Creek side. The circuit court concluded the only access to the Arnett property was over the landfill property. Roe Creek does not challenge the circuit court's factual finding.

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necessity, implication, and/or prescription across the landfill property in order to gain access to the Arnett property. The Lawrence Circuit Court held a bench trial in this matter on March 31, 2010. On April 8, 2010, the circuit court entered findings of fact, conclusions of law and judgment finding that, while Arnett did not establish an easement by necessity or implication, he did obtain an easement by both estoppel and prescription. On April 19, 2010, Roe Creek filed a motion to alter, amend, or vacate the judgment; the circuit court denied Roe Creek's motion. On the same date, Roe Creek filed a motion for additional findings. The circuit court granted Roe Creek's motion in part by clarifying the exact location and size of the easement. This appeal followed. Standard of Review Because this matter "was tried before the court without a jury, its factual findings `shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses[.]'" Carroll v. Meredith, 59 S.W.3d 484, 489 (Ky. App. 2001) (quoting Kentucky Rules of Civil Procedure (CR) 52.01). "A factual finding is not clearly erroneous if it is supported by substantial evidence." Carroll, 59 S.W.3d at 489. 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." Gosney v. Glen, 163 S.W.3d 894, 898 (Ky. App. 2005).

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A reviewing court is not bound, however, by the trial court's conclusions of law. Carroll, 59 S.W.3d at 489. Consequently, the trial court's application of the law to the facts is subject to an "independent de novo appellate" review. Gosney, 163 S.W.3d at 898. Analysis We begin by noting that no written agreement exists between Arnett and Roe Creek (or its predecessor) establishing an express easement across the landfill property. Nevertheless, an easement may still be created by "implication, prescription, or estoppel." Gosney, 163 S.W.3d at 899; Loid v. Kell, 844 S.W.2d 428, 429 (Ky. App. 1992). It is well-settled that easements are not favored in this Commonwealth and, as a result, the person asserting the right to an easement bears the heavy burden of proving all the requisites necessary to obtain an easement. Gosney, 163 S.W.3d at 899. Roe Creek first asserts the trial court erred by concluding as a matter of law that Arnett established an easement by estoppel over the landfill property. We agree. An easement by estoppel is premised upon general principles of equity and estoppel. Gosney, 163 S.W.3d at 899; Smith v. Howard, 407 S.W.2d 139, 143 (Ky. 1996). It is an "equitable principle utilized to prevent one who has failed to act when he should have acted from reaping a profit to the detriment of his adversary." Loid, 844 S.W.2d at 430. In determining whether an easement by

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estoppel exists, it is necessary to consider the fundamental principles underlying the equitable estoppel doctrine, including: (1) conduct which amounts to a false representation or concealment of material facts which a party subsequently attempts to assert; (2) intention, or at least the expectation, that such conduct shall be acted upon by the other party; and (3) knowledge, actual or constructive, of real facts. As related to the party claiming the estoppel, [the essential estoppel elements include]: (1) Lack of knowledge and of the means of knowledge of the truth as to the facts in question; (2) reliance upon the conduct of the party estopped; and (3) action based thereon of such a character as to change his position prejudicially. Smith v. Howard, 407 S.W.2d 139, 143 (Ky. 1966); Jones v. Sparks, 297 S.W.3d 73, 77 (Ky. App. 2009). More simply, to establish an easement by estoppel, the party claiming its existence must prove: (1) the promisor conveyed a false promise or representation to the promisee; (2) the promisor intended or expected the promisee to rely on the false representation; (3) the promisee believed and relied on the representation; and (4) action based thereon of such a character as to change the promisee's position prejudicially. See Jones, 297 S.W.3d at 77; 25 Am.Jur.2d Easements and Licenses in Real Property

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