RENDERED: JANUARY 8, 2016; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2014-CA-000767-MR RUTH C. DEHART APPELLANT APPEAL FROM GRAVES CIRCUIT COURT v. HONORABLE DENNIS R. FOUST, JUDGE ACTION NO. 10-CI-00644 DENNIS CANTER APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: MAZE, NICKELL, AND VANMETER, JUDGES. VANMETER, JUDGE: Ruth C. Dehart appeals from a Graves Circuit Court order rejecting her claim of a prescriptive easement across property owned by Dennis Canter. For the following reasons, we affirm. Dehart and her mother, Ora Cooper (Ora), her predecessor in title, and Canter and his father, Rex Canter (Rex), his predecessor in title, have been adjoining landowners for more than forty years. Dehart s properties are, as
identified by their abbreviated Graves County Property Valuation numbers, parcels number 42 and 45. 1 Canter s properties are identified as parcels 40, 41, and 62. The parties parcels are contiguous to a gravel roadway which turns into Rex Road. Rex Road runs to the south of the parties parcels and connects these tracts to a nearby road. In 1976, W.D. Cooper, the previous owner of parcels 63, 64, 65, and 66, granted an easement to both Ora and Rex to use the gravel roadway on his land between the end of Rex Road and their respective properties. Since 1976, Ora, and now Dehart, have also crossed over the southwest corner of Canter s parcel 62 to reach the gravel roadway from their properties. Rex Road is maintained by the county, but the gravel roadway is privately owned by W.D. Cooper s successor in interest, and ends at a fence erected by Canter at the beginning of his property. Traversing the corner of Canter s land to reach the gravel roadway is not a necessity for Dehart, albeit the most convenient route, to make use of the W.D. Cooper easement. Evidence was presented that Rex verbally granted Ora the right to cross this southwest corner of parcel 62 in exchange for allowing his family to hunt on Ora s land. Whether such an agreement between Rex and Ora was made is contested between the parties. Dehart made an oral motion in limine to preclude the introduction of any evidence that referred to this alleged oral agreement between Ora and Rex. Dehart s motion in limine was granted, in part because the court 1 Dehart s property has access to State Highway 2422, which is adjacent to her parcel 45. -2-
agreed with Canter that the content of the verbal agreement, if it existed, is irrelevant to the issue at hand. Dehart originally filed this case in the Graves Circuit Court, to which Canter responded with an answer and counter claim. The current appeal began with cross motions for summary judgment between Dehart and Canter. The trial court denied those motions, and Dehart renewed her motion for summary judgment, which was denied, and the case was set for a bench trial. In lieu of a bench trial, the parties agreed to a summary judgment style hearing. Prior to the hearing, the trial judge met with counsel for both parties in order to discuss any proposed stipulations. After reviewing each party s arguments and stipulations, the trial court put forth its findings in the Stipulations, Findings of Fact, Conclusions of Law and Judgment. The trial court found that the parties had stipulated to all issues except the issue of law whether Dehart had the right to cross the southwest corner of Canter s property. Dehart disagreed with the stipulations and moved the trial court to amend, alter or vacate its order. Her order was denied, and this appeal followed. Dehart argues that the trial court erred by finding that she had permission to cross onto Canter s property, and therefore she had not established all of the elements required for a prescriptive easement. She contends that she has met the required elements to establish a prescriptive easement and that Canter has not provided any evidence that would defeat any one of those elements. We disagree. -3-
CR 2 59.05 states: A motion to alter or amend a judgment, or to vacate a judgment and enter a new one, shall be served not later than 10 days after entry of the final judgment. In general, a trial court has unlimited power to alter, amend, or vacate its judgments. Gullion v. Gullion, 163 S.W.3d 888, 891-92 (Ky. 2005). The Supreme Court of Kentucky has limited the grounds for relief under CR 59.05 to those established by its federal counterpart, Federal Rule of Civil Procedure 59(e). Id. at 893. There are four basic grounds upon which a Rule 59(e) motion may be granted. First, the movant may demonstrate that the motion is necessary to correct manifest errors of law or fact upon which the judgment is based. Second, the motion may be granted so that the moving party may present newly discovered or previously unavailable evidence. Third, the motion will be granted if necessary to prevent manifest injustice. Serious misconduct of counsel may justify relief under this theory. Fourth, a Rule 59(e) motion may be justified by an intervening change in controlling law. Id. (internal footnote omitted). A trial court s ruling on a CR 59.05 motion is reviewed under an abuse of discretion standard. Bowling v. Kentucky Dep t of Corr., 301 S.W.3d 478, 483 (Ky. 2009). First, Dehart argues that she has met all required elements to establish a prescriptive easement over the southwest corner of Canter s property. As with adverse possession of a fee simple estate, a prescriptive easement can be acquired by actual, hostile, open and notorious, exclusive, and continuous possession of the property for the statutory period of fifteen years. Columbia Gas Transmission 2 Kentucky Rules of Civil Procedure. -4-
Corp. v. Consol of Kentucky, Inc., 15 S.W.3d 727, 730 (Ky. 2000); see also KRS 3 413.010. The only element that remains at issue in this case is whether Dehart s possession was hostile, or rather, without any permission from Canter. Dehart argues since no permission was ever granted to her family to cross the southwest corner of the Canter property, the use of the passway has been hostile in nature since 1976, thereby satisfying the time requirement. However, [i]t is a well settled rule that use of property by express or implied permission or license, no matter how long continued, cannot ripen into an easement by prescription[.] Poe v. Gaunce, 371 S.W.3d 769, 775 (Ky. App. 2011) (internal citations omitted). Dehart argues that the use of the easement was hostile as [t]he owner's mere knowledge of the possession [by a third party]... [does] not destroy hostility. Henninger v. Brewster, 357 S.W.3d 920, 930 (Ky. App. 2012) (internal citations omitted). To say that possession is hostile should mean nothing more than that it is without permission of the one legally empowered to give possession, usually the owner. Id. at 927 (internal citations omitted). 4 In this case, Canter and his father were aware that Dehart was using this corner of their land to reach the gravel roadway. Regardless of the content of any agreement between Ora and Rex, prior amenable discussions between the parties about crossing this corner took 3 Kentucky Revised Statutes. 4 Henninger is distinguished from the case at hand, as the court was evaluating whether the open and notorious element of adverse possession had been met when the possessing party had made a mistake of boundaries, and the opposing party embraced that mistake. -5-
place, and, at the very least, the Canters actively tolerated such use from Ora/Dehart until Canter revoked use of the easement by building a fence. Dehart also argues that Canter acquiesced to the use of the easement since 1976, rather than granting permission, thereby beginning her hostile possession at that time. 5 This court has held given that prescriptive easements by their nature are founded on acquiescence... clear conduct indicating that a property owner is not acquiescing as to a prospective easement owner's claim of right should rightfully be considered as ending the running of a prescriptive period. Allen v. Thomas, 209 S.W.3d 475, 481 (Ky. App. 2006) (internal citation omitted). Both parties, through the testimony of Rex and Dehart, agree that until 2009, no disagreement over the use of the easement occurred and Ora/Dehart had unfettered access to cross this corner. Coupled with the fact that, in 2009, Canter then took clear steps to terminate Dehart s use of the easement, the trial court was reasonable to infer that more than mere acquiescence to use the easement occurred prior. Furthermore, Dehart has offered no evidence to show that her use of the easement was due only to mere acquiescence on the part of Canter. Thus, we agree that Canter permitted the use of the easement, until 2009, and therefore Dehart cannot be considered in hostile possession until that date. The fifteen years 5 Aquiescence is defined as meaning to accept, agree, or allow something to happen by staying silent or by not arguing, and to accept, comply, or submit tacitly or passively ; while permit is defined as to consent to expressly or formally. See Merriam-Webster Dictionary Online, http://www.merriam-webster.com/dictionary (last viewed Nov. 2, 2015.) The former denotes inaction, the latter, action. -6-
required for an easement by prescription did not begin until 2009 when permission was revoked, and Dehart has not met the time/duration requirement. We agree that Dehart has failed to show a hostile possession of this easement. Second, Dehart argues that Canter has not offered any evidence to defeat her claim of prescriptive easement. [A]s easements are not favored under the law, the right of one to acquire title to an easement, which would deprive the owner of the use of his own property or burden it with a servitude, will be restricted unless it is clearly established by the facts that all the necessary requisites of adverse use have been fully satisfied. Allen, 209 S.W.3d at 478. [T]he burden to prove all requirements of a prescriptive easement falls upon the party seeking it, and said requirements must be clearly established by the facts.... Id. at 482. Thus, the burden falls on Dehart, not Canter. As discussed above, Dehart has failed to make a showing by the facts that she has met the hostile requirement for a prescriptive easement. Accordingly, we find that the trial court did not abuse its discretion by denying Dehart s Motion to Amend, Alter, or Vacate. The Order of the Graves Circuit Court is affirmed. ALL CONCUR. BRIEF FOR APPELLANT: Dennis L. Null, Jr. Mayfield, Kentucky BRIEF FOR APPELLEE: Gerald Bell Murray, Kentucky -7-
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