JOHN DAVID MCNALLY APPELLANT v. JAMES MCNALLY APPELLEE (2013)

NOT TO BE PUBLISHED

OPINIONAFFIRMING

John David McNally appeals from the July 19, 2011, findings of fact, conclusions of law, and declaratory judgment entered by the Meade Circuit Court regarding a disputed easement between the parties.   Finding no error, we affirm.

John David McNally filed a verified petition for declaration of rights pursuant to Kentucky Revised Statutes (KRS) 418.040 and Kentucky Rules of Civil Procedure (CR) 57 over the scope and use of right of ingress and egress over a 60–foot easement.   James McNally, John David's half-brother, filed an answer and a counterclaim asking for injunctive relief.   The trial court conducted a bench trial on this matter.   Both parties testified and Bonnie O'Blander testified as a witness for John David.

At the trial, the court was presented testimony that all of the property involved in the action was at one time owned by the parties' deceased father, John Dee McNally.   At the time of his death, the property owned by John Dee was devised to his three children—John David, James, and Bonnie O'Blander.   Deeds were prepared to divide the property among the heirs.^Double

John David acquired Lot 1 and Lot 3 in the John McNally Heirs Subdivision.   A plat of the subdivision is recorded in Plat Cabinet 7, Sheet 35 of the Meade County Clerk's office.   The deed by which John David acquired title to Lots 1 and 3 is recorded in Deed Book 522, Page 281, in the Meade County Clerk's office.   Said deed contains the following language granting the easement at issue:

Being Lot 1 and Lot 3 in the John McNally Heirs Subdivision, which plan and plat is of record in Plat Cabinet 7 Sheet 35, office of the Meade County Court Clerk.

Lot 1 is subject to a 60 foot easement for ingress and egress to Lot 2 of the John McNally Subdivision (Plat Cabinet 7, Sheet 35).

James acquired Lot 2 by deed recorded in Deed Book 525, page 342 of the Meade County Clerk's office.   Said deed contains the following language pertaining to the easement:

Lot 2 has the right of ingress and egress over a 60 foot easement located on Lot 1 in the John McNally Heirs Subdivision as depicted on the plat of the same of record in Plat Cabinet 7, Sheet 35, Office of Meade County Court Clerk.

A part of this easement had been previously used by the father, John Dee, as a means of accessing the property that later became Lot 2. At that time it was a grass path that was later graveled and was approximately 10 feet in width.^Double James could access Lot 2 from other property that he owns, although that access was difficult due to a sink hole.   James had also constructed a garage on the other property impeding easy access to Lot 2.

After hearing the evidence, the court determined that the grant of the easement for ingress and egress, without restrictions, should be presumed to be general in that the easement may be used in such a manner as is necessary for the reasonable occupation and enjoyment of the dominant estate (Lot 2).   Moreover, the court concluded that James may use the easement for purposes of accessing Lot 2 by vehicle or on foot and may also lay underground pipes and/or utilities in a reasonable manner that allows James the reasonable occupation and enjoyment of Lot 2. It is from this that John David now appeals.

On appeal John David presents one argument to this Court which he maintains merits reversal of the trial court's declaratory judgment:  namely, that the court improperly expanded the extent and nature of uses of the subject easement.   John David urges this Court to interpret the easement at issue as one solely for the right to enter, leave, and reenter the land in question, as opposed to the trial court's interpretation that the easement should include the right to lay utilities and pipe.   James argues on appeal that the trial court correctly interpreted the easement.   With these arguments in mind we turn to our applicable jurisprudence.

At the outset we note our appellate standard of review sub judice.

“Findings 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.   Factual findings are clearly erroneous if they are unsupported by substantial evidence.  Carroll v. Meredith, 59 S.W.3d 484, 489 (Ky.App.2001).  “Substantial evidence is evidence, when taken alone or in light of all the evidence, has sufficient probative value to induce conviction in the mind of a reasonable person.”  Gosney v. Glenn, 163 S.W.3d 894, 898 (Ky.App.2005).   We review matters of law de novo.   Id.

The construction of a deed is a matter of law and, absent an ambiguity, the intention of the grantor is to be gathered from the four corners of the instrument.  Phelps v. Sledd, 479 S.W.2d 894 (Ky.1972);  Eastham v. Church, 310 Ky. 93, 219 S.W.2d 406 (Ky.1949).

Sub judice, we have an express written grant of an easement.^Double It has long been the law in this Commonwealth that we derive the intent of the parties concerning such an easement from the four corners of the deed, absent an ambiguity:  “What was in the minds of the parties at the time the easement agreement was executed relative to the intentions of the parties must be determined from the context of the agreement itself, since it is manifest the language of the instrument is not ambiguous.”  Texas Eastern Transmission Corp. v. Carman, 314 S.W.2d 684, 687 (Ky.1958) (internal citations omitted).

The parties argue extensively over how the easement should be interpreted, specifically as to whether the easement should include the ability to lay underground pipe and/or utilities, which would be necessary for a residence on Lot 2. John David is correct that easements may not be enlarged or extended so as to increase the burden upon, or interfere with, the servient estate.   Commonwealth, Dept. of Fish & Wildlife Resources v. Garner, 896 S.W.2d 10, 14 (Ky.1995), citing City of Williamstown v. Ruby, Ky., 336 S.W.2d 544 (1960).   Moreover, the use of the easement must be as reasonable and as little burdensome to the landowner as the nature and purpose of the easement will permit.  Horky v. Kentucky Utilities Co., 336 S.W.2d 588, 589 (Ky.1960), citing Buck Creek R. Co. v. Haws, 253 Ky. 203, 69 S.W.2d 333.   While the parties disagree as to whether the normal development of the land was contemplated, we find such an argument to be resolved by the four corners of the deed.^Double

Sub judice the parties prepared a deed giving the easement in question:

Lot 2 has the right of ingress and egress over a 60 foot easement located on Lot 1 in the John McNally Heirs Subdivision as depicted on the plat of the same of record in Plat Cabinet 7, Sheet 35, Office of Meade County Court Clerk.

(Emphasis added).

Looking at the four corners of the deed we agree with the trial court that the express easement in question gave James a 60–foot easement for access to his property by using the terms “ingress and egress.”   Additionally, it is apparent that the parties contemplated the normal development of the land ^Double into a residential subdivision given their use of the term “John McNally Heirs Subdivision.”   There is little doubt that the use of the term “subdivision” envisions not mere ingress and egress, but utilities and piping as well.   We interpret the plain and ordinary meaning of this contractual language to support James's position that utilities and underground piping should be permitted with the easement for the normal development of the land as contemplated by the deed.   See Pace v. Burke, 150 S.W.3d 62, 65 (Ky.App.2004).   Accordingly, we find no error in the trial court's declaratory judgment.

Finding no error, we affirm.

ALL CONCUR.

CAPERTON, JUDGE: