Kirby W. Holladay, Jr. v. Frank L. Alexander, II

RENDERED: AUGUST 4, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0537-MR
KIRBY W. HOLLADAY, JR. AND
PAMELA J. HOLLADAY APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE MITCH PERRY, JUDGE
ACTION NO. 13-CI-004714
FRANK L. ALEXANDER, II AND
ROYA ALEXANDER APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: CALDWELL, GOODWINE, AND MCNEILL, JUDGES.
MCNEILL, JUDGE: Kirby and Pamela Holladay (“Holladays”) appeal from the
Jefferson Circuit Court’s judgment terminating their right to a parking easement on
Frank and Roya Alexander’s property. For the reasons below, we reverse and
remand.
This appeal is the latest in an ongoing easement dispute between the
Holladays and Alexanders. In Holladay v. Alexander, No. 2015-CA-001718-MR,
2018 WL 2992976 (Ky. App. Jun. 15, 2018), a panel of this Court held the
Holladays had a valid easement to park on the Alexanders’ property and that the
Holladays’ improvements, including pouring a concrete pad and adding retaining
walls, did not violate the scope of the easement. Subsequently, the Holladays filed
a second amended complaint seeking injunctive relief and damages for the
Alexanders’ interference with their use and enjoyment of the easement. On
January 1, 2022, the trial court conducted a bench trial prior to entering a final
declaration of rights concerning the easement.
At trial, Mr. Holladay testified about Mr. Alexander’s various
interference with the Holladays’ use and enjoyment of the easement, including
parking cars on the easement so that the Holladays could not access it, spray
painting “no trespassing” on the easement, fencing off the easement, and
attempting to tow the Holladays’ vehicles from the easement. On cross
examination, Mr. Holladay admitted he had accidentally performed some work
outside of the easement area and that one of the walls he constructed around the
easement was on the Alexanders’ property.
He was also questioned about the scope and his use of the easement.
Mr. Holladay stated his granddaughter and his dog sometimes play on the concrete
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pad, and he has conducted a yard sale on the easement, but he did not believe these
uses were outside the easement’s scope. He further testified pedestrians sometimes
walk or sit on the easement during the St. James Art Show, which takes place in
their neighborhood, but he does not invite them to do so. The Alexanders did not
testify.
Following the evidence, the trial court entered findings of fact,
conclusions of law, and a judgment terminating the Holladays’ easement.1
Relevant to the appeal, the trial court found the Holladays performed “significant
construction” on the easement to install a concrete parking pad surrounded by
brick retaining walls and that “[s]ome of this construction went beyond the
easement area.” It also found the Holladays considered the parking area as their
own and that the parties’ relationship had deteriorated.
Based upon these findings, the court concluded the landowners had
“completely frustrat[ed] the purpose of the easement by their conduct and
behavior, with the Holladays going far beyond the scope of the easement, and
effectively attempting an unprecedented private taking of property.” Noting the
urban setting of the easement and its limited size and scope, the court found this
“micro-easement . . . bears no practical similarity to the utility, railroad, or public
1
The court also entered a separate order addressing the status of the easement for title purposes.
The Holladays appeal from both orders.
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road easements” in Kentucky case law. Thus, the trial court relied upon the
RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES § 7.10 (2000), which allows a
court to terminate an easement when a change has made it practically impossible to
accomplish the purpose of the easement, as its legal basis for terminating the
servitude.
The court determined the easement’s original purpose was for the
property owners to “peacefully share” the parking area, which was practically
impossible because the parties could not get along. It further found that “[t]hrough
their actions, the [Holladays] have attempted to impermissibly enlarge the burden
on the servient estate, frustrating the purpose of the easement.” The court ruled
that mere modification of the easement would not be effective due to the animosity
of the parties and therefore concluded it had no other choice but to terminate the
easement. This appeal followed.
As this is an appeal from a bench trial, the court’s factual findings are
“not [to] 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.” CR2 52.01.
A factual finding is not clearly erroneous if it is supported by substantial evidence.
Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (citation omitted). However,
2
Kentucky Rules of Civil Procedure.
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we review the trial court’s conclusions of law de novo. Sawyers v. Beller, 384
S.W.3d 107, 110 (Ky. 2012) (citation omitted).
The Holladays argue the trial court erred in terminating their easement
based upon the RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES § 7.10; its
finding that the Holladays have violated the scope of the easement is not supported
by substantial evidence; and erred in failing to grant an injunction enjoining the
Alexanders from interfering with their use of the easement. We agree.
We begin by noting that easement forfeitures are not favored in the
law. Dukes v. Link, 315 S.W.3d 712, 718 (Ky. App. 2010). And an express
easement, like the one in this case, generally lasts forever unless terminated or
extinguished by an act of the parties such as abandonment, conveyance, or
merger. Scott v. Long Valley Farm Kentucky, Inc., 804 S.W.2d 15, 16 (Ky. App.
1991). Here, however, the trial court relied upon the RESTATEMENT (THIRD) OF
PROPERTY: SERVITUDES § 7.10 to terminate the easement.3
That section provides:
When a change has taken place since the creation of a
servitude that makes it impossible as a practical matter to
accomplish the purpose for which the servitude was
created, a court may modify the servitude to permit the
3
The trial court looked to the Restatement, at least in part, due to its erroneous conclusion that
because of the urban setting and limited size of the parking easement that it “bears no practical
similarity to the utility, railroad, or public road easement[]” cases in Kentucky and, therefore,
“there is very little caselaw on easements such as this.” We would note that Kentucky caselaw
on easements is generally applicable to this case, despite its factual differences.
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purpose to be accomplished. If modification is not
practicable, or would not be effective, a court may
terminate the servitude.
There is no Kentucky caselaw discussing this section of the
RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES, or even citing it. It would
appear Kentucky has not yet adopted Section 7.10. Regardless, we find the trial
court’s reliance upon it misplaced. The trial court found the parties’ hostility made
it “impossible as a practical matter to accomplish the purpose for which the
servitude was created,” quoting Section 7.10. However, we have found no
authority, in Kentucky or otherwise, terminating an easement simply because the
parties could not get along. In fact, according to the evidence, Mr. Alexander was
the primary agitator. “[A]n easement appurtenant cannot be unilaterally terminated
by the grantee of the servient estate . . . .” Wood v. Simon, 251 N.Y.S.2d 621, 624
(N.Y. Super. Ct. 1964); see also Van Horn v. Harmony Sand & Gravel, Inc., 122
A.3d 1021, 1028 (N.J. Super. Ct. App. Div. 2015) (citation omitted) (“Only the
holder of the easement is able to unilaterally terminate an easement through
renunciation.”).
The Comment to the RESTATEMENT (THIRD) OF PROPERTY:
SERVITUDES § 7.10 makes it clear that this section applies in situations where a
servitude no longer serves any useful purpose. According to Comment a, the
rationale behind Section 7.10 is to prevent obsolete servitudes from interfering
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with desirable uses of land. Further, “[b]ecause servitudes create property interests
that are generally valuable, courts apply the changed-conditions doctrine with
caution. Of the many changed-conditions cases that have produced appellate
decisions, few result in modification or termination of a servitude.” RESTATEMENT
(THIRD) OF PROP.: SERVITUDES § 7.10 cmt. a. “The test is stringent: relief is
granted only if the purpose of the servitude can no longer be accomplished.” Id.
“If use of the servient estate can still be made within the confines of the servitude
and the purpose of the servitude can still be accomplished, there are no grounds for
judicial modification or termination of the servitude under this section.” Id. at cmt.
b.
Here, there is no evidence the parking easement is obsolete or no
longer serves any useful purpose. We disagree with the trial court’s determination
that the purpose of the servitude was for the “neighbors to peacefully share [the]
parking area[.]” In Holladay, 2018 WL 2992976, at *5, we held the purpose of the
easement was to establish a “parking area . . . for the benefit of the dominant estate
(Holladays).” Just because Mr. Alexander dislikes the servitude or disagrees with
its existence, or because the parties cannot coexist peacefully, does not mean the
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purpose of the servitude can no longer be accomplished. The remedy for
continued interference by Mr. Alexander is an injunction.4
The trial court’s ruling was apparently also based upon the Holladays’
misuse of the easement, as it found the Holladays “have managed to completely
frustrate the purpose of the easement by their conduct and behavior, going far
beyond the scope of the easement, and effectively attempting an unprecedented
taking of private property.” But the trial court made no findings to support this
conclusion. While it noted “[t]he testimony at the bench trial only confirmed that
it was indeed the [Holladays’] intention to complete a decade long push to take this
property[,]” the only finding concerning the Holladays’ (mis)use of the easement
was that they “performed significant construction on the easement to install a
concrete parking pad with brick retaining walls surrounding the pad. Some of this
construction went beyond the easement area.”
However, we ruled in Holladay, 2018 WL 2992976, at *5, that neither
the concrete pad nor brick retaining walls violated the scope of the easement.
While one of the retaining walls was constructed on the Alexanders’ property
outside the easement, that wall has since been removed, and this act alone cannot
4
As recently as July 2022, we noted that “Appellants continue[] to obstruct the Holladays’ use
and enjoyment of the easement even after the first panel of this Court expressly ruled that the
easement was appurtenant to the land and enured to the benefit of the Holladays.” Alexander v.
Owners Insurance Company, No. 2021-CA-0959-MR, 2022 WL 2542119, at *3 (Ky. App. Jul.
8, 2022).
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work to support a forfeiture.5 “An easement is not lost by its use in an
unauthorized manner or to an unauthorized extent, unless the misuse of the
easement is willful and substantial and not merely minor or technical.”6 28A
C.J.S. Easements § 165.
The only other evidence at trial concerning the Holladays’ use of the
easement was that they once held a yard sale on the concrete pad, placed their
garbage cans there, and their granddaughter sometimes played on the parking area.
Even if these actions constituted misuse of the easement,7 such misuse is not
substantial enough to terminate the easement. Forfeitures of easements based upon
misuse are not favored in Kentucky. O’Banion v. Cunningham, 168 Ky. 322, 182
5
In voiding the easement, the trial court also noted the Alexanders “are responsible for ensuring
compliance with a multitude of governmental entities, while not having actual control over the
area to perfect that compliance.” However, we recognized in Holladay, 2018 WL 2992976, at
*5, that “a party making improvements to an easement has the obligation regarding applicable
laws and regulations and would be responsible for any repercussions stemming from his failure
to comply.”
6
Mr. Holladay conceded he performed some work outside of the easement, but testified it was an
accident based upon incorrect calculations.
7
It is the general rule that “[a] right-of-way easement created by a conveyance in general terms
and without any restrictions on its use is to be construed as broad enough to permit any use that
is reasonably connected with the reasonable use of the land to which it is appurtenant.” 28A
C.J.S. Easements § 199. And “owners of [an] easement are not strictly limited to purposes for
which it had been historically used.” Sawyers v. Beller, 384 S.W.3d 107, 111 (Ky. 2012) (citing
Cameron v. Barton, 272 S.W.2d 40 (Ky. 1954)). The easement agreement in this case provided
a “parking and access area . . . whereby access is given to the Grantee across the property of the
Grantors, and parking area is provided on the property of the Grantors.” The easement was to
provide “pedestrian and vehicular access, ingress and egress . . . for the benefit of [grantee].”
We question whether the grant of a parking area for “access, ingress and egress” is so specific as
to limit use of the easement only to parking or coming and going and not uses reasonably
connected to a parking area such as riding a bicycle or staging garbage cans.
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S.W. 185, 186 (1916). And generally, the proper remedy for misuse is an action
for damages or an injunction. Id; see also 28A C.J.S. Easements § 165 (citations
omitted) (“Misuser does not authorize the owner of the servient estate to prevent a
further use of the easement by erecting obstructions, or by restraining the owner of
the easement by force or violence, the proper remedy being an action for damages,
or for an injunction if the remedy at law is inadequate.”). Therefore, we find the
trial court erred in terminating the easement, whether under the RESTATEMENT
(THIRD) OF PROPERTY: SERVITUDES § 7.10 or due to misuse.
Lastly, the Holladays argue the trial court erred in failing to grant
injunctive relief restricting the Alexanders from interfering with their use and
enjoyment of the easement. Injunctive relief is an extraordinary remedy and is best
left to the sound discretion of the trial court. Maupin v. Stansbury, 575 S.W.2d
695, 697 (Ky. App. 1978) (citations omitted). Further, CR 52.01 states, “in
granting or refusing temporary injunctions or permanent injunctions the court shall
similarly set forth the findings of fact and conclusions of law which constitute the
grounds of its action.” Here, the trial court implicitly denied the Holladays’ claim
for injunctive relief when it terminated the easement, however it did not explicitly
address the claim in its order or make any related findings. Because we have
found the trial court erred in terminating the easement, we remand the issue of
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whether a permanent injunction against the Alexanders’ interference with the
Holladays’ use and enjoyment of the easement is appropriate.
Therefore, we reverse the orders of the Jefferson Circuit Court and
remand this matter for proceedings consistent with this Opinion.
ALL CONCUR.
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES:
John H. Dwyer, Jr. Brian H. Stephenson
Janice M. Theriot C. Michael Van Sickle
Louisville, Kentucky Louisville, Kentucky
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