Delcie Endicott v. Billy Burchett ( 2023 )

RENDERED: APRIL 21, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0705-MR
DELCIE ENDICOTT APPELLANT
APPEAL FROM FLOYD CIRCUIT COURT
v. HONORABLE THOMAS M. SMITH, JUDGE
ACTION NO. 20-CI-00307
BILLY BURCHETT AND BRENDA
BURCHETT APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, ECKERLE, AND KAREM, JUDGES.
CALDWELL, JUDGE: The Appellant, Delcie Endicott (Endicott), appeals from
the trial court’s order following a bench trial. Endicott had filed a petition to quiet
title on property she purchased at a master commissioner’s sale. Endicott was
seeking interpretation of an express easement to allow her greater access to the
property than the owners of the servient estate, Billy and Brenda Burchett (the
Burchetts), would allow. We affirm the trial court.
FACTS
In 1976, Brenda Burchett’s parents, Isaac and Lillian Blackburn (the
Blackburns), granted a portion of their property to Brenda and her husband, Billy.
The Blackburns reserved an easement over that portion of land deeded to the
Burchetts to allow for access to a Blackburn family cemetery located upon the
property granted to the Appellees.
After Isaac Blackburn passed away,1 a master commissioner’s sale
was conducted to auction off the dominant estate; the reason for the auction is not
determinable by the record. Billy Burchett testified that he bid on the property but
was not the high bidder. Delcie Endicott was the high bidder and won the property
at the auction.
When Endicott went to inspect the land, she was unable to go upon it
due to a locked gate on the Burchetts’ land, which prevented ingress onto her new
property. Endicott filed a petition to quiet title, seeking access to the land she had
purchased, and which access she alleged the Burchetts were preventing.
The Burchetts alleged that they had not prevented Endicott access to
the property. They also alleged that Endicott was attempting to set up a
commercial operation upon the land consisting of a pay lake. They objected to
1
From the record, it appears his wife predeceased him.
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Endicott being granted use of the roadway to support a commercial operation and
insisted the roadway easement was only for personal use.
Following the bench trial, the trial court entered findings of fact and
conclusions of law and held that Endicott was entitled only to access to the land by
virtue of the easement in the deed, which allowed for a roadway only for personal
use. Endicott has appealed this determination. We affirm.
STANDARD OF REVIEW
Because the underlying order was issued following a bench trial, we
review the finding of facts for clear error. We review any legal conclusions de
novo. See Barber v. Bradley, 505 S.W.3d 749, 754 (Ky. 2016).
Our review of a circuit court’s findings of fact following
a bench trial is to determine whether those findings are
clearly erroneous. [Kentucky Rule of Civil Procedure]
CR 52.01. This rule applies with equal force to matters
involving boundary disputes. Croley v. Alsip, 602
S.W.2d 418, 419 (Ky. 1980). Factual findings are clearly
erroneous if unsupported by substantial evidence. Moore
v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). Substantial
evidence is defined as “that which, when taken alone or
in light of all the evidence, has sufficient probative value
to induce conviction in the mind of a reasonable person.”
Bowling v. Natural Resources and Environmental
Protection Cabinet, 891 S.W.2d 406, 409 (Ky. App.
1994) (citations omitted).
Our role as a reviewing court prohibits us from disturbing
the circuit court’s factual findings that are supported by
substantial evidence, despite whether we would have
reached a contrary conclusion. Moore, 110 S.W.3d at
354. We defer to a significant degree to the circuit court,
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for it had the opportunity to observe, scrutinize, and
assess the credibility of witnesses. CR 52.01.
Notwithstanding the deference due the circuit court’s
factual findings, its conclusions of law, reached after
making its findings, are reviewed de novo. Hoskins v.
Beatty, 343 S.W.3d 639, 641 (Ky. App. 2011).
Bishop v. Brock, 610 S.W.3d 347, 350 (Ky. App. 2020).
ANALYSIS
At the outset, we note that the Burchetts have asked that we dismiss
this matter because Endicott failed to file a designation of record pursuant to the
former CR 75.01. We note that no video record was certified as contained in the
record by the local clerk and none was transmitted to the Clerk of this Court as part
of the record on appeal. Despite this, Endicott has included citations to a video
record in the brief.
In the Rules of Appellate Procedure (RAP), now applicable, the onus
does not appear to be on Endicott to certify that the video proceedings of the trial
should be included in the record on appeal. Rather, RAP 24(A)(3) makes it clear
that the record should automatically contain the video recording of the trial.
“Official recordings of the trial that results in the order or judgment being appealed
from shall be certified as a part of the record on appeal.” Id. Despite this, RAP
24(B)(1)(a) requires an appellant to file a designation of record to assist the clerk
in ensuring the record includes all necessary items.
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(a) Contents of Record Designation. Appellant or
counsel for appellant, if any, shall provide the clerk of
the trial court with a designation listing with specificity
the dates on which official recordings were made for all
pre-trial and post-trial proceedings necessary for
inclusion in the record on appeal. While trial recordings
are part of the record on appeal regardless of designation,
to facilitate the timely preparation and certification of the
record, the parties should list the date(s) of any trial
proceedings.
Id.There were no recordings included in the record on appeal in this
matter. Under the prior rules, in existence at the time the parties filed their briefs,
it was Endicott’s responsibility to ensure the record was complete.
Appellant has a responsibility to present a “complete
record” before the Court on appeal. Steel Technologies,
Inc. v. Congleton, 234 S.W.3d 920, 926 (Ky. 2007).
“Matters not disclosed by the record cannot be
considered on appeal.” Montgomery v. Koch, 251
S.W.2d 235, 237 (Ky. 1952); see also Wolpert v.
Louisville Gas & Elec. Co., 451 S.W.2d 848 (Ky. 1970)
(holding that our predecessor court could not review
contentions of prejudice before the jury when the only
basis for the argument was the Appellant’s brief, because
review is confined to the record). Appellant may not
raise allegations of error on appeal “based entirely on a
silent record.” Commonwealth v. Thompson, 697 S.W.2d
143, 144 (Ky. 1985). Further, “[i]t has long been held
that, when the complete record is not before the appellate
court, that court must assume that the omitted record
supports the decision of the trial court.” Id. at 145.
Hatfield v. Commonwealth, 250 S.W.3d 590, 600-01 (Ky. 2008).
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As we cannot review the bench trial, we will constrain our review of
error to a review of the findings of fact and conclusions of law and order issued by
the trial court. The trial court found that the Burchetts obtained the servient estate
from the Blackburns in 1976, when the servient estate was carved from their
property, the remainder of which became the dominant estate. The Blackburns
reserved the right to enter upon the property to access the Blackburn family
cemetery, contained upon the servient estate granted the Burchetts. The dominant
estate was the subject of a master commissioner’s sale conducted after the
Blackburns had passed away.
The trial court found that Endicott was the highest bidder at the
auction of the dominant estate and that when she went to attempt to inspect the
property, she was unable to gain access to the property. The Burchetts denied
locking a gate on their property, but acknowledged a gate was erected across the
easement. The trial court found that Endicott’s son intended to operate a pay
fishing lake upon the property his mother had obtained and that the easement was
necessary to stock the lake and to allow customers access to the lake.
The trial court concluded that such use was unreasonable and would
be too burdensome. The court ordered that Endicott be allowed use of the
easement for her personal use only.
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The terms of an easement are determined by the language of the
document granting the right. The deed executed by the Backburns in 1976
granting to the Burchetts the two-acre parcel contained an express easement, to
wit, “It is understood that the first party is to have a road-way expected (sic) for
land being owned above.” The trial court found this easement to be a latent
ambiguity in that it was not clear whether the present roadway was in the same
place as the easement referred to in the 1976 deed. The trial court relied upon Mrs.
Burchett’s testimony that the present roadway was in substantially the same
location it was when her parents granted the land. The trial court found that the
granted easement ran with the land and Endicott obtained the parcel with the
easement for access when she won the bid at the Commissioner’s sale. See Meade
v. Ginn, 159 S.W.3d 314, 321-22 (Ky. 2004).
The trial court constrained Endicott’s use thereof in compliance with
the original easement – to have access to the land beyond it, but not for any
commercial operation. We find that to be a reasonable conclusion.
In the case of an express easement, such as is
present in the instant case, the terms of the conveyance
determine the rights and liabilities of the parties. See
Texas E. Transmission Corp. v. Carman, 314 S.W.2d
684, 687 (Ky. 1958) (citing Puckett v. Hatcher, 307 Ky.
160, 209 S.W.2d 742, 744 (1948)). If the language is
unambiguous, the intent of the parties at the time the
easement agreement was executed must be determined
from the context of the agreement itself. Id. An
easement confers a right upon the dominant tenement to
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enjoy a right to enter the servient tenement. See Scott v.
Long Valley Farm Kentucky, Inc., 804 S.W.2d 15, 16
(Ky. App. 1991).
While an easement holder may not expand the use
of the easement, it is equally true that the easement
grantor may not interfere with the easement holder’s use
of the easement. Commonwealth, Dept. of Fish and
Wildlife Res. v. Garner, 896 S.W.2d 10, 13-14 (Ky.
1995).
With respect to an express easement for a road or
passway, our law holds that the servient owners must
permit the free and unrestricted use of the passway by the
owners of the dominant estate. Sandman v. Highland,
312 Ky. 128, 226 S.W.2d 766, 768 (1950) (citing Jenkins
v. Depoyster, 299 Ky. 500, 186 S.W.2d 14 (1945); Wells
v. N.E. Coal Co., 255 Ky. 63, 72 S.W.2d 745 (1934);
Kentucky & West Virginia Power Co. v. Elkhorn City
Land Co., 212 Ky. 624, 279 S.W. 1082 (1926)). While it
is true that the owners of the dominant estate must use
their right so as to be as little burdensome as possible to
the servient estate, id., it is nevertheless also true that the
owners of the easement are not strictly limited to
purposes for which it had been historically used.
Cameron v. Barton, 272 S.W.2d 40 (Ky. 1954).
Sawyers v. Beller, 384 S.W.3d 107, 111 (Ky. 2012).
CONCLUSION
We find that the trial court properly found that it would be unduly
burdensome to the servient estate to allow Endicott to use the easement to conduct
a commercial operation. We affirm the trial court’s order, interpreting the
easement contained in the original deed, to allow only for a roadway over the
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servient estate of the Burchetts to allow Endicott access to the land obtained at the
master commissioner’s sale.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEES:
Timothy A. Parker Ned Pillersdorf
Prestonsburg, Kentucky Prestonsburg, Kentucky
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