TIM RAMAGE APPELLANT v. GARY DOOM AND AMY DOOM APPELLEES (2011)

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Tim Ramage appeals from a summary judgment of the Livingston Circuit Court concluding that an express easement exists across his property in favor of Gary and Amy Doom and enjoining him from closing or obstructing the easement.   He contends that the phrase “heirs and assigns” in the deed that created the easement did not create an easement appurtenance.   Tim further contends that because the easement was created by a deed executed after the sale of the property to the Dooms's predecessor in title and is not reserved in the Dooms's chain of title, it is not a valid easement.   We agree with the circuit court that Tim's contentions are contrary to established property law and affirm.

The facts are undisputed and the parties present only questions of law, thus, our review is de novo.  Dukes v. Link, 315 S.W.3d 712, 715 (Ky.App.2010).

By deed dated November 9, 1991, Cleveland and Carnelia Ramage conveyed to their daughter Diane Jones and her husband a 15–acre tract derived from a larger tract.   Less than a week after the conveyance to the Joneses, on November 15, 1991, Cleveland and Carnelia conveyed a 5.95–acre adjoining tract to their son, Tim. In the deed, an easement for the right to cross a gravel road over the 5.95–acre tract was expressly provided.   It states:

The first parties hereby expressly reserve to themselves, their heirs, executors, administrators, personal representatives, and assigns, the right, at their own risk, to cross the strip or parcel of real property conveyed by this deed, by the lanes and roads now established on the above-described property and at such other points as may be agreed upon by the parties to this deed, their heirs, successors, or assigns, for the purpose of having access to such part or portion of the real property and premises of the first parties as may, by the conveyance of the above-described tract or parcel of real property, be cut off from the rest of the real property and premises of the first parties, their heirs, or assigns.

There is no dispute that at the time Cleveland and Carnelia conveyed the 5.95–acre tract to Tim, the gravel road had existed on the tract for sixty-five years and provided the only means of ingress and egress to the Joneses' property.

The Joneses continued to use the gravel road to access their property until February 12, 2003, when the Dooms purchased the 15–acre tract.   The Dooms continued to use the gravel road located on Tim's property until later in 2003 when Tim blocked the road.

Tim's argument focuses on the use of the terms “heirs and assigns” used in the deed reserving the easement.   He contends that because the easement was created after the conveyance of the 15–acre tract to the Joneses, the Dooms cannot be an assignee of Cleveland and Carnelia as used in the deed.   Further, Tim argues that because Cleveland and Carnelia did not own the property served by the easement when it was created, it is an easement in gross which created merely a personal right for their benefit.

We begin with the basic applicable principles of law, which we recently reiterated in Dukes:

Easements are created by express written grant, implication, prescription or estoppel.   An express easement is created by a written grant with the formalities of a deed.  Loid v. Kell, 844 S.W.2d 428, 429 (Ky.App.1992).   The nature of an easement is distinguishable from a mere license in that it is an incorporeal right-always separate and distinct from the right to occupy and enjoy the land itself.  Lyle v. Holman, 238 S.W.2d 157, 159 (Ky.1951).   It is a privilege or an interest in land and invests the owner with “privileges that he cannot be deprived of at the mere will or wish of the proprietor of the servient estate.”  Louisville Chair & Furniture Co. v. Otter, 219 Ky. 757, 294 S.W. 483, 485 (1927).   In contrast to a restrictive covenant that restricts the use and enjoyment of property, an easement confers a right upon the dominant tenement to 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).

Easements can be in gross or appurtenant, the distinction being that “in the first there is not, and the second there is, a dominant tenement to which it is attached.”  Meade v. Ginn, 159 S.W.3d 314, 320 (Ky.2004)(quoting 25 Am.Jur.2d Easements and Licenses in Real Property § 11 (1996)).   An easement appurtenant inheres in the land and cannot be “terminated by an act of the parties (for example, abandonment, merger, or conveyance) or by operation of law, as in the case of forfeiture or otherwise.”  Scott, 804 S.W.2d at 16.

Id. at 715.   An easement appurtenant is favored and a private roadway is never presumed to be personal when it can be fairly construed to be appurtenant.  Riddle v. Jones, 191 Ky. 763, 231 S.W. 503 (1921).   Where a roadway is visible and in existence at the time of a deed and known to be used for ingress and egress to adjoining land, the acceptance of a deed with knowledge of the roadway creates a presumption that the land is subject to the easement.  Hedges v. Stucker, 237 Ky. 351, 35 S.W.2d 539 (1931).

Both the common law and statutory law recognize that an easement can be enforced even if the deeds of the dominant and servient tenement do not reference its existence.   In Dukes, this Court held that the recording of the instrument that grants an easement binds a subsequent purchaser of the tract burdened by the easement regardless of whether it is included in the purchaser's deed.  Dukes, 315 S.W.3d at 717.   In doing so, this Court quoted Hopper v. Beddow, 283 Ky. 337, 141 S.W.2d 278, 279 (1940), where the legal principle was stated that a passway established for the benefit of adjoining property owners was an appurtenance to each piece of property that passed with each subsequent conveyance regardless of whether mentioned in the deeds.  Id. at 716.

The recited law is codified in KRS 381.200(1), which states that “[e]very deed, unless an exception is made therein, shall be construed to include all buildings, privileges and appurtenances of every kind attached to the lands therein conveyed.”   Thus, contrary to Tim's assertion, the absence of any mention of the easement in the Dooms's chain of title is not determinative.

By express language, the easement in the deed was created to benefit the tract now owned by the Dooms.   It is undisputed that the Dooms's predecessors in title, the Joneses, had access to their property only by use of the gravel road reserved as an easement in the deed to Tim. The Joneses were assigns of Cleveland and Carnelia and the Dooms are assigns as grantees from Jones.   Therefore, an easement appurtenant was created and the Dooms, as owners of the domain and tenement, have a permanent easement over the property owned by Tim.

Based on foregoing, the summary judgment is affirmed.

ALL CONCUR.

THOMPSON, JUDGE: