Kentucky Properties Holding LLC v. Donald Sproul

RENDERED: SEPTEMBER 22, 2016
§upreme Court of BenF§NIKEL
AT '
2014-SC-000368-DG
KENTUCKY PROPERTIES HOLDING LLC APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. CASE NOS. 2012-CA-000842-MR AND 2012-CA-000978-MR
GALLATIN CIRCUIT CC)URT NO. 07-CI-00214
DoNALD sPRoUL APPELLEE
t)PINION OF THE COURT BY JUSTICE HUGHES
REVERSING
This dispute concerns the status of Church Lane, an old road or passway
in Gallatin COunty, and, more specifically, a disagreement among neighboring
landowners as to the ownership of Church Lane. Donald Sproul contends that
the road is owned by the county or alternatively is a public road, while
Kentucky Properties Holding, LLC (hereafter “the Hornsbys”)1 argue that the
road is their private property. After a bench trial, the circuit court determined
that Church Lane is a private road, but on appeal the Court of Appeals
reversed that judgment, finding that Church Lane is a public road. After
1 The Court of Appeals permitted the substitution of Kentucky Properties
Holding, a limited liability company (LLC), as a party in the place of landowners
Michael and Mary Jo Hornsby. For clarity we will refer to the Appellant as the
Hornsbys, as the record refers to them in this way.
l,)(
careful consideration of the record, we reverse the Court of Appeals and
reinstate the judgment of the Gallatin Circuit Court.
FACTUAL AND PROCEDURAL BACKGROUND
The Hornsbys are the owners of a 196-acre farm in Gallatin County,
Kentucky. The farm is located on the southern portion of a strip of land which
is bracketed by the Ohio River and Paint Lick Creek. North of the Hornsbys’
farm is a 4.5 acre tract divided among four landowners who are no longer
parties to this case.2 At the northernmost tip of the strip of land is a tract of
land belonging to Donald Sproul.
Due to the geographic orientation of the area, the owners of the “middle
property” and Sproul must cross the Hornsbys’ property to reach their land.
Access to Sproul’s property and the “middle property” is obtained by traveling
across a gravel road known as Church Lane. Church Lane begins adjacent to
the Paint Lick Baptist Church parking lot at Highway 1992, travels through the
Hornsbys’ farm before turning north near the Ohio River, continues on to
intersect with the “middle property” and then traverses that property up to
Sproul’s land. On a marked aerial photograph agreed to by the litigants as a
joint exhibit, Church Lane looks roughly like the capital letter “L” with the base
or horizontal bar of the “L” clipping southward and being somewhat longer than
the vertical bar of the “L.” Virtually all of Church Lane is on the Hornsbys’
2 The four landowners, the Hinkels, Stambaughs, Hudepohls, and Days, were
initially parties to this lawsuit. However, after they agreed to use Church Lane in
conformance with the Hornsbys’ wishes, they were dismissed from the suit. For
clarity We will collectively refer to their land as the “middle property.”
2
property, the exception being a small portion of the road (the upper portion of
the vertical bar of the “L”) that traverses the “middle property” and seemingly
ends at Sproul’s tract.
In 2006, the Hornsbys erected a gate on Church Lane, near where the
road intersects With Highway 1992. According to the Hornsbys, the Church
Lane gate was necessary to bar entry to trespassers who were stealing,
dumping trash, and otherwise doing damage to their property. While the
Hornsbys provided their neighbors (Sproul’s predecessors-in-interest and the
“middle property” landowners) with the Church Lane gate code, they preferred
that their neighbors use an alternate route,
That alternate route, Carolina Road, is a second gravel passway
constructed by the Hornsbys across their property. Carolina Road is accessed
from nearby Jackson Landing Road and proceeds northward across the
Hornsby property, intersecting with Church Lane (within the horizontal bar of
the “L”) and providing an alternate access road for the Hornsbys’ neighbors. As
they had on Church Lane, the Hornsbys erected a gate on Carolina Road--this
one at its intersection with Jackson Landing Road. When the Hornsbys gave
their neighbors the code to the Carolina Road gate, they insisted that the
neighbors access their land through the use of Carolina Road.3 Despite the
Hornsbys’ request, Sproul’s predecessors-in-interest continued to use the
Church Lane gate to access their property.
3 The parties disagree as to whether Sproul has been given the key code to
access the gate on Carolina Road.
In October 2007, the Hornsbys filed a lawsuit in the Gallatin Circuit
Court to obtain an order requiring the “middle property"’ owners and Sproul’s
predecessors-in-interest to keep the Church Lane gate locked. In December
2007, the circuit court entered a temporary injunction, requiring that the
Hornsbys’ neighbors cease and desist leaving the Church Lane gate unlocked
or propped open.
Subsequently, Sproul purchased his relatives’ property and began to
develop it into a subdivision. To accomplish this, Sproul brought back hoes,
bulldozers, and other large equipment onto his property, which the Hornsbys
allege caused damage to Church Lane. Additionally, the Hornsbys argue that
Sproul continued to leave the Church Lane gate open, creating the potential for
trespassers to enter and damage their property.
In June 201 1, the Hornsbys moved to amend their complaint to add
Sproul as a named defendant Additionally, the Hornsbys moved to dismiss
the other named defendants due to their agreement to leave the Church Lane
gate locked and to instead use the Carolina Road gate. F``urther, the Hornsbys
filed a motion to modify and enforce the temporary injunction against Sproul.
In their suit, the Hornsbys sought a permanent injunction, compensatory
damages, and a declaratory judgment defining safe use of Church Lane by
Sproul.
Sproul opposed the Hornsbys’ requests, arguing that Church Lane was a
county road and as such, the Hornsbys had no right to erect gates, narrow the
roadway, or limit its use. After considering the arguments of both parties, the
4
trial court issued a temporary injunction mandating the closing and locking of
the Church Lane gate after Sproul’s entrance and exit until the issue was
resolved at trial.
During the ensuing February 2012 bench trial, the Hornsbys called a
number of local residents to offer testimony about their knowledge of the
private character of Church Lane. Gallatin County Judge Executive Ken
McFarland testified that Church Lane is not maintained by the county and that
the county had no plans to maintain the road in the future. Additionally,
McFarland stated that he was unaware of any county records suggesting that
Church Lane is a county road, McFarland’s testimony was supported by that
of Kenneth Stambaugh, one of the ‘_‘middle property" owners, who testified that
in the twenty-six years that he had owned his property, he had no recollection
of the county taking steps to maintain Church Lane. Rather, according to
McFarland, the neighbors were collectively responsible for maintaining Church
Lane.
The Hornsbys also called Chris Gephart, a licensed surveyor who
disagreed with Sproul’s claim that Church Lane was a county road depicted in
the 1883 Atlas. Attorney Stephen Kenkel, Who served as the closing agent
when the Hornsbys purchased their farm, testified that prior to the purchase,
he conducted a search and was unable to find records of any deeded
easements, passways, or right-of-ways on what is now the Hornsbys’ property,
Sproul similarly relied on the testimony of local witnesses to support his
claim of the public nature of Church Lane.4 Kenny French, the former Judge
Executive of Gallatin County from 2007-2010, testified that he had been a
tenant farmer on what is now the Hornsby farm in the mid-1970s. Kenny
French recalled that a school bus used to travel down Church Lane in the
1970s and that to facilitate the bus’s route, the county had graded or graveled
the road where the bus stopped to turnaround and proceed back to Highway
1992. Additionally, French expressed his view that Church Lane had been
maintained by the county for years.
However, in both his deposition and trial testimony, Kenny French noted
that he only considered a portion of Church Lane to be a county road. During
his deposition when asked to identify where the public or county portion of
Church Lane ended, Kenny French noted that he believed that it ended at the
intersection of Church Lane and Carolina Road. (As noted, this intersection
was Within the horizontal bar of the “L” formed by Church Lane.) French’s view
of Church Lane consisting of two portions, one private and the other public,
was reiterated during questioning about county maintenance of Church Lane.
When Kenny French added Church Lane onto the county maintenance list, he
only added the portion previously referenced_the eastern portion of Church
Lane ending at the intersection of Carolina Road. Further, during French’s
4 Sproul also introduced at trial a series of maps and documents, which he
claimed demonstrated that Church Lane was a county road and not a private
passway.
trial testimony, the Hornsbys referred him to the map that he had marked
during his deposition and he reiterated that past a point on Church Lane he
had never witnessed it be publicly maintained or alluded to as a county road.5
Sproul also offered the testimony of Kenny French’s brother, Denny
French, who is the pastor of the nearby Paint Lick Baptist Church. Denny
French recalled that prior to the early-1990s there had been a family with
school children who lived on what is now the Hornsby farm and that a school
bus would travel down a portion of Church Lane to pick them up. Additionally,
Denny French testified that the county removed snow from Church Lane once
in the late 197 Os and conducted culvert repair for the Mid-Valley Pipeline in
the early 1980s. Sproul also called Gallatin County Attorney John Wright who
testified as to his opinion that Church Lane is a public passway, based on his
interpretation of the 1883 Atlas and his personal experiences.
To rebut the testimony of Denny and Kenny French, the Hornsbys called
Larkin LeGrand. LeGrand, a former tenant farmer on Church Lane, testified
that he rode the county school bus that serviced the area from 1985 to 1996.
However, LeGrand denied that the bus had ever travelled down Church Lane;
instead, the bus stopped at the parking lot of the Paint Lick Baptist Church
and waited there to transport the children who lived in tenant houses on the
farm.
5 Kenny French did insist that Church Lane was referenced as a county road in
the 1883 Atlas.
After hearing the evidence, the trial court made detailed findings of fact
which included the following determinations First, the trial court found that
Church Lane was not the county road depicted in the 1883 Atlas. Second, the
court found the county never formally adopted Church Lane as a county road,
and that it is not currently on the county’s list of maintained roads.6 Third, the
trial court noted the county’s maintenance of the road in the 1970s, 1980s,
and early 19903.
Based on these findings of fact, the trial court made a two-part ruling as
to the status of Church Lane. As to the western portion of Church Lane, past
its intersection with Carolina Road and proceeding northward to the neighbors’
properties, the trial court found that it was a private passway. However, as to
the eastern portion of Church Lane (roughly half of the horizontal bar of the
“L”), the trial court deemed that it had been maintained by the county and
used by the public, Nonetheless, the trial court determined that this portion of
Church Lane was also a private road, The trial court concluded that the public
use and county maintenance of the road ceased fifteen years prior to the
Hornsbys’ purchase of their property in 2005. Based on this conclusion and
the determination that the requirements of Kentucky Revised Statute (KRS)
17 8. 1 16(1) had not been met, the trial court found that Church Lane had been
abandoned by the county and that it had reverted to a private passway.
6 In March 2010, the Gallatin Fiscal Court voted to include the road on the
county maintenance list, However, at a subsequent public meeting the fiscal court
voted to remove Church Lane from the county maintenance list until the legal status
of the road was established
`` Sproul appealed the judgment of the circuit court, and in a unanimous
decision the Court of Appeals reversed. The Court of Appeals concluded that
all of Church Lane was a public road as a matter of law based on our decision
in Bailey v. Preserve Rural Roads of Madison Cty., Inc., 394 S.W.3d 350 (Ky.
2011) and KRS 178.116. The Court of Appeals reasoned that as Church Lane
provided Sproul with necessary access to his property, its public status could
not be discontinued without a joint petition to the fiscal court by the
landowners and the private parties needing access. As one of the private
parties, Sproul, disagreed to the reversion, Church Lane was required to
remain an open public road, Additionally, the Court of Appeals remanded the
case to the circuit court to determine the width of Church Lane.
We granted discretionary review to evaluate whether the Court of Appeals
employed the proper analysis to determine whether Church Lane is a public
road, Ultimately, we conclude that it did not.
ANALYSIS
As this is an appeal from a trial without a jury, our standard of review is
set forth in Kentucky Rule of Civil Procedure (CR) 52.01. CR 52.01 requires
that the trial court make specific findings of fact and state separately its
conclusions of law relied upon to render the court’s judgment. On review,
“[f]indings of fact, 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.” CR 52.01. Indeed, “judging the credibility of witnesses and
weighing evidence are tasks within the exclusive province of the trial court.”
9
D.G.R. v. Com., Cabinet for Health & Family Serz)s., 364 S.W.3d 106, 114 (Ky.
2012) (quoting Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003)).
As such, “[i]f the trial judge's findings of fact in the underlying action are
not clearly erroneous, i.e., are supported by substantial evidence, then the
appellate court's role is confined to determining whether those facts support
the trial judge's legal conclusion.” Commonwealth v. Deloney, 20 S.W.3d 471,
473-74 (Ky. 2000). Indeed, simple doubt as to the appropriateness of a finding
will not justify its reversal. D.G.R., 364 S.W.3d at 114 (citation omitted).
However, while deferential to the lower court’s factual findings, appellate review
of legal determinations and conclusions from a bench trial is de novo. Nash 1).
,Campbell Cty. Fiscal Court, 345 S.W.3d 811, 816 (Ky. 2011).
1. The Trial Court Properly Determined that Church Lane is Not a County
Road.
While often used interchangeably in Kentucky jurisprudence, the terms
“county road” and “public road” are not synonymous Under KRS 178.010,
“‘[c]ounty roads’ are public roads Which have been formally accepted by the
fiscal court of the county as a part of the county road system.” Since the
enactment of Chapter 80, Acts of 1914, a formal order of the fiscal court has
been required to establish a county road. Sarver 1). Allen Cty., By & Through Its
Fiscal Court, 582 S.W.Qd 40, 41 (Ky. 1979) (citing Rose 1). Nolen, 179 S.W. 229,
230 (Ky. 1915)). Therefore, While a road may be “public,” it is not automatically
a “county road.”
10
In the case at bar, the trial court determined that Church Lane was not a
county road. This conclusion was based on the county’s decision not to
formally adopt Church Lane as a county road.7 As such, the trial court did not
err in determining that Church Lane is not a “county road.”
2. The Court of Appeals Misapplied KRS 178.116 and Bailey in Evaluating
Whether Church Lane is a Public Road.
In determining that the entirety of Church Lane is a public road, the
Court of Appeals concluded that such a finding Was mandated by the language
of KRS 178.116(1) and this Court’s decision in Bailey. However, KRS 178.116
was not intended to replace the longstanding law governing prescriptive
easements; nor did our decision in Bailey purport to create a new standard for
the establishment of a public road.
KRS 178.116 entitled “Discontinuance of a road,” governs the process by
which a county road or a road formerly maintained by the county or the state
shall be deemed discontinued and its possession reverted to the owners of the
tract to which it originally belonged. Thus KRS 178.116(1) states:
(1) Any county road, or road formerly maintained by the county
or state, shall be deemed discontinued and possession shall
revert to the owner or owners of the tract of land to which it
originally belonged unless at least one (1) of the following
conditions exists: ``
7 While, the fiscal court included Church Lane on the county road maintenance
list in September 2010, it was removed from the list several weeks later. However, the
inclusion of Church Lane on the maintenance list would have been insufficient to
formally adopt Church Lane as a county road, While such an action would have been
sufficient previously, since the adoption of Chapter 80, Acts of 1914, a formal order of
the fiscal court is required to establish a county road. 1983 Ky. Op. Att’y Gen. 2-123
(1983).
11
(a) A public need is served by the road;
(b) The road provides a necessary access for a private
person;
(c) The road has been maintained and policed by the county
or state within a three (3) year period.
KRS 17 8. 1 16 clearly does not purport to supplant the common law on the
question of whether a road is public or private. It only applies when assessing
whether a discontinuation has occurred.
Similarly, Bailey is inapplicable to determining whether a road is of a
public or private character. In Bailey, the fiscal court decided to discontinue
maintenance on a county road pursuant to KRS 178.070. 394 S.W.3d at 353.
Subsequently, a landowner attempted to block that road with a gate. Id. A
non-profit organization filed suit to force removal of the gate to enable
continued access to the road. Id. at 354-355. This Court determined that the
landowner was barred from maintaining the gate, as the road provided
necessary access to one of the landowner’s neighbors and there had not been a
petition filed satisfying the requirements of KRS 178.116(4). Id. at 360. While
Bailey clarified what occurs after the county discontinues maintenance of a
county road, it did not address the standards by which a public road is
established in the first instance. Nor, did Bailey cast into doubt the existing
common law or statutory process by which a public road is established by
prescription. Therefore, the Court of Appeals erred by relying on KRS 178.116
and Bailey to determine that the whole of Church Lane was a public road,
12
3. The Court of Appeals En'ed in Concluding that the Western and
Northerly Portion of Church Lane is a Public Road.
While Church Lane is not a county road, as the trial court correctly
found, a separate analysis is necessary to determine whether the entirety of the
road or a portion of it is public. The process by which a public road is
established is controlled by the common law and statute. The fiscal court is
empowered under KRS 178.115 to establish or alter the location of any public
road or similar thoroughfare in the county. However, it is also well established
that a road may become public by prescription. Ewen 1). Commonwealth, 39
S.W.2d 969 (Ky. 1931); KRS 178.025 (“[a]ny road . . . used without restrictions
on a continuous basis by the general public for fifteen (15) consecutive years,
shall conclusively be presumed to be a public road.”).
As there Was no action taken by the fiscal court to formally establish
Church Lane as a county road, our inquiry turns to whether a public road was
established by prescription. In the trial court’s March 15, 2012 judgment there
were detailed findings of fact concerning the public’s use of Church Lane and
the intermittent efforts by the county to maintain the road. The county’s
maintenance efforts included providing gravel work to the eastern portion of
Church Lane up to the road’s intersection with Carolina Road. Additionally,
the trial court recognized that a culvert repair performed by the county in the
1980s occurred on this section between the church parking lot and the
Carolina Road intersection. It is noteworthy, that those maintenance efforts
were limited to the eastern portion of Church Lane, rather than the whole of
13
the road. As to the western and northerly portion of Church Lane there was
scant proof presented regarding the county’s upkeep of the road.8
However, the Court of Appeals implicitly rejected the trial court’s findings
of fact stating that “[t]he record in this case is clear that for some time, up
through at least the mid-197OS, Gallatin County performed maintenance on
the entire length of Church Lane.” Yet, the Court of Appeals failed to identify
what facts it relied upon in the record in reaching this conclusion. Having
reviewed the record, we find none supporting this expansive statement.
Accordingly, we are unable to agree with the Court of Appeals that the trial
court’s findings of fact regarding the lack of county maintenance of the western
and northerly portion of Church Lane were clearly erroneous.
This conclusion is essential to determining whether the western and
northerly portion of Church Lane is of a public or private character. As there
was insufficient evidence presented concerning the public’s use or the county’s
upkeep and maintenance of the western and northerly portion of Church Lane
we are unable to conclude that a public road Was ever established on this part
of Church Lane by prescription.
8 While not addressed in the trial court’s factual findings of fact, in their briefs
Sproul and the Hornsbys discuss the testimony of Julie Sullivan, a former Gallatin
County road worker. Sullivan, Who worked for the county for two years in the 1970s,
testified that that he had been part of a road crew that provided maintenance to
Church Lane. According to Sullivan, the county’s maintenance took the form of
placing gravel and filling in potholes. Sproul and the Hornsbys disagree as to whether
this maintenance occurred over the whole of the Church Lane or if it was limited solely
to the eastern portion of the road,
14
4. The Court of Appeals Erred in Determining that the Eastern Portion of
Church Lane Was Not an Abandoned or “Discontinued” Public Road.
After deciding that the western and northerly portion of Church Lane is
private, the trial court concluded that the eastern portion of the road was
previously a public road. The trial court in its judgment, noted that the county
had performed maintenance on the eastern portion of Church Lane from the
mid-1970s to the early 1990s. Additionally, there was testimony detailing the
public’s use of the road--including the county’s use of the road to transport
children to school. As such, the trial court concluded that the eastern portion
of Church Lane was at one time a public road,
The trial court then analyzed whether the county had abandoned that
portion of the road under KRS 178.116. The trial court concludedthat the
conditions listed in KRS 176.116(1) were not met and that as such the county
had indeed abandoned the eastern portion of Church Lane. However, on
appeal,_the Court of Appeals, determined that the trial court erred in its
application of KRS 176.116. The Court of Appeals concluded that as the road
provides necessary access to Sproul it remains a public road.
As noted, KRS 178.116 governs the discontinuance of a county road or a
public road formerly maintained by the county or state. Under KRS
178.116(1), when a road is discontinued it reverts to the owner or owners of
the tract of land to which it originally belonged, unless one of the following
conditions exists: “(a) [a] public need is served by the road; (b) [t]he road
15
provides necessary access for a private person; (c) [t]he road has been
maintained and policed by the county or state within a three year period.”
While the eastern portion of Church Lane is not a county road, the
county’s previous maintenance on the road triggers the application of KRS
178.116. We then evaluate Whether any one of the three conditions of KRS
178.116(1) is met to prevent the discontinuation of the road. In the case at
bar, Sproul argues that Church Lane provides necessary access to his
property.9 However, the trial court concluded that the eastern portion of
Church Lane was not necessary for Sproul and the other “middle property"’
landowners as they had been provided access to their property through the use
of Carolina Road.
Resolution of this issue depends on this Court’s interpretation as to what
constitutes “necessary access.” A question of statutory construction is a
matter of law and therefore subject to the de novo standard of review.
Cumberland Valley Contractors, Inc. v. Bell Cty. Coal Corp., 238 S.W.3d 644,
647 (Ky. 2007). “The cardinal rule of statutory construction is that the
intention of the legislature should be ascertained and given effect.” Jefferson
9 In his brief, Sproul also argues that “Kentucky courts have historically
extended the protection against blocking public roads, or passways, to those roads
that were ‘public roads’ but did not meet the technical definition of a ‘county road’
because of the lack of being adopted by the formal action of the fiscal court after
1914.” In support of this argument, Sproul cites the Court to Blankenship v. Acton,
159 S.W.3d 330 (Ky. Ct. App. 2004). In Blankenship, the Court of Appeals affirmed
the trial court’s enjoining of Blankenship from restricting his neighbors’ access to the
road, Id. at 334. However, the outcome in Blankenship Was not due to a longstanding
public policy against blocking public roads, but rather a narrow result based on
Blankenship’s failure to demonstrate that this section had reverted to his tract of land
instead of that of his neighbor. Id.
16
Cty. Bd. of Educ. v. Fell, 391 S.W.3d 713, 718 (Ky. 2012) (quoting MPM
Financial Group, Inc. v. Morton, 289 S.W.3d 193, 197 (Ky. 2009)).10
We begin our inquiry by examining the language employed by the
legislature, “relying generally on the common meaning of the particular words
chosen, which meaning is often determined by reference to dictionary
definitions.” Fell, 391 S.W.3d at 719. KRS 178.1 16(5) defines “necessary
access” as, “access to any farm, tract of land, or dwelling, or to any portions of
such farm, tract of land, or dwelling.” Additionally, “necessary” is defined by
Black’s Law Dictionary as follows: “1. That is needed for some purpose or
reason; essential 2. That must exist or happen and cannot be avoided;
inevitable.” Necessary, BLAcK’s LAW DICTIoNARY (10th ed. 2014).
These definitions offer the Court limited guidance and they are not
dispositive as to whether the availability of an alternate route invalidates the
argument that Church Lane provides a necessary access for a private person
under KRS 17 8. 1 16(1)(b). However, the term “necessary” has a long history in
Kentucky statutory and case law, which is more illuminating
In Louisl)ille & N.R. Co. 1). Ward, 149 S.W. 1145, 1146 (Ky. 1912), our
predecessor Court was asked to review the county court’s condemnation of
land belonging to the Louisville & Nashville Railroad Company. Ward, who
owned land adjoining the railroad’s property, sought the condemnation of the
10 Such a review is in keeping with the view of the legislature as espoused in
KRS 446.080(1), which states “[a]ll statutes of this state shall be liberally construed
with a view to promote their objects and carry out the intent of the legislature . . . .”
17
railroad’s land to establish a passway from his property to the turnpike. The
central argument for the railroad on appeal, was that the passway was
unnecessary to grant Ward an outlet to the public highway, and that as such
the judgment ordering its establishment should be reversed. Id. at 1146. At
issue was section 4348 of the Kentucky Statutes, which permitted
establishment of a passway, “Whenever it shall appear to a county court that it
is necessary for a person to have a private passway over the land of one or
more persons to enable him to attend courts, elections, a meeting house, a
mill, warehouse, ferry, or railroad depot most convenient to his residence.” Id.
The railroad argued that the word “necessary” employed in the statute
meant an actual and absolute necessity. However, this argument was rejected
by the Court. In affirming the judgment of the lower court, the Court defined
necessity as “a practical necessity” as opposed to an “absolute necessity.” Id.
(quoting Vice 1). Eden, 68 S.W. 125, 127 (1902)). Subsequently, the Court
reviewed the facts of Ward’s case to determine whether the passway was
necessary.
While Ward had two means of ingress or egress from his home, the use of
either route posed a significant risk. The first route, would require Ward to use
a nearly abandoned county road, which connected to the present county road
at an “incline and angle thoroughly impracticable and absolutely unfitted for
traffic purposes.” Id. at 1 147 . Further, the use of this route was not just
deemed to be impracticable, but rather explicitly deemed to be Very dangerous
Id. The other available route was also disadvantageous, requiring Ward to
18
cross the land of multiple neighbors Id. Further, during inclement weather
the route would be impassable due to the overflow of a culvert maintained by
the railroad. Id. As both existing routes featured significant hazards, the
Court determined that the passway Ward requested was necessary. Id.
Other cases illustrate that “necessary access” does not mean “absolute
necessity” but rather “practical necessity.” In Williams 1). Render, 200 Ky. 788,
255 S.W. 703 (1923), Williams, the owner of a small bottom farm bordering a
river, sought access through his neighbor's property to reach a public
thoroughfare, but the trial court rejected his application because there was
another route to the farm. In reversing, this Court’s predecessor noted that the
alternate route crossed the properties of several different landowners, who
sometimes Would grant and at other times Would not grant permission for
Williams to cross their properties, and the route was “circuitous,” increasing
Williams’s commute by three or four miles. 255 S.W. at 703. Although not
absolutely necessary, the requested access was a “practical necessity.” Id.
Similarly, in Goose Creek Lumber Co. v. White, 219 Ky. 739, 294 S.W.
494 (1927), a passageway was constructed across White’s farm to enable a
lumber company to transport timber. Because there Was a public road and a
creek, Goose Creek, that paralleled the passageway for its entire length, White
argued that these two routes “obviated the necessity” for the passageway
across her property. 294 S.W. at 495. This Court’s predecessor noted that
necessary access “does not contemplate an absolute necessity, but a practical
necessity.” Id. Goose Creek was found to be a small stream, thirty to forty feet
19
wide, which would rise irregularly and “subside quickly, affording little means
of transportation.” Id. As for the public road, it was a “dirt road, runs through
low and marshy lands for a large part of the way, and becomes almost
impassable in wet weather,” rendering it also “entirely impractical.” Id.
Accordingly, the constructed passageway was allowed to remain as “necessary”
for the lumber company’s access to its property.
In the case at bar, Sproul contends that Church Lane provides him
necessary access to his property. However, through the Hornsbys’
construction of Carolina Road, Sproul has been furnished an alternate route to
access his property. Unlike in Ward, the use of that alternate route does not
cause Sproul any unreasonable hardship or pose any danger, nor is there any
issue of a circuitous alternate route or erratic access as in Williams and Goose
Creek Lumber Co. Because there is no practical necessity for Sproul to use the
entirety of Church Lane, we cannot say that the eastern portion of Church
Lane provides Sproul “necessary access” to his property. Accordingly, the trial
court correctly determined that Church Lane had been discontinued as a
public road under KRS 17 8. 1 16(1),11 and the eastern portion of Church Lane
reverted back to the Hornsbys as a private road.
11 In its judgment the trial court found “that the public has not used and
Gallatin County has not maintained any portion of Church Lane for at least fifteen (15)
years prior to the Hornsby’s (sic) purchase of their property in 2005.” As such, the
trial court also found that Church Lane was abandoned as a public road relying on
our decision in Saruer v. Allen Cty., By & Through Its Fiscal Court, 582 S.W.2d 40, 41
(Ky. 1979). In Sarver, the Court noted that “[c]onsidering that a public user ordinarily
ripens into a prescriptive easement in 15 years . . . it would seem reasonable to apply
the same criterion to a reversal of the process that is an abandonment through
nonuse by the general public.” Id. at 43. To the extent a public road was not
20
CONCLUSION
For reasons explained herein, the decision of the Court of Appeals is
reversed and the judgment of the Gallatin Circuit Court is reinstated.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Todd V. McMurtry
Hemmer DeFrank Wessels, PLLC
Elizabeth A. McCord
Gerner &, Kearns Co., LPA
COUNSEL FOR APPELLEE:
Ruth Helen Baxter
Crawford & Baxter, PSC
“formerly maintained by the county or state,” KRS 178. 1 16 is not applicable and
Sarz)er still controls abandonment of that road. However, in this case KRS 178. 1 16
clearly applied because the road .was formerly maintained by the county.
21