AP DP LLC APPELLANT v. ANDY DENDINGER KASEY DENDINGER AND FARMS LLC APPELLEES (2026)

OPINION AFFIRMING

AP & DP, LLC ¹ (Appellant) brings this appeal from a February 20, 2025 Opinion and Order of the Spencer Circuit Court granting summary judgment in favor of Andy Dendinger and Kasey Dendinger (Dendingers) and R&B Farms, LLC (R&B Farms). We affirm.

On July 27, 2017, Appellant purchased a 32.08-acre tract of land located on Taylorsville Lake in Spencer County, Kentucky. Appellant purchased the property at auction which had been advertised as: “Frontage along Corp of Engineer base flood elevation for Taylorsville Lake!” and “Sold ‘As-Is Where-Is’ to highest bidder!” Trial Record (R.) at 42. Also included in the advertisement for auction was a map prepared by the Property Valuation Administrator that clearly depicted the 32.08-acre tract as landlocked. There are no public roads, private roads, or waterways connected to the property. The 32.08-acre tract is bound on all sides by the following three properties: (1) property owned by R&B Farms located at 574 Cull Road; (2) property owned by the Dendingers located at 573 Cull Road; and (3) property owned by the United States of America Army Corps of Engineers (Army Corps). The Army Corps property is located directly on the lake and lies between the 32.08-acre tract and the lake, thus preventing direct access to the tract from the water.

A few months after Appellant purchased the property, Douglas W. Peters (Douglas) wrote a letter to the Dendingers. In the letter, Douglas acknowledged knowing the property was landlocked when the purchase was made. Douglas proposed purchasing an easement across the Dendingers’ property for ingress and egress to the 32.08-acre tract, or, in the alternative, selling the entire 32.08-acre tract to the Dendingers. R. at 126. The Dendingers responded they were not interested in either option presented by Douglas.

Some seven years after purchasing the 32.08-acre tract, Appellant filed a Complaint in the Spencer Circuit Court against, inter alios, R&B Farms and the Dendingers (collectively referred to as Appellees). In the Complaint filed on March 8, 2024, Appellant sought a declaration of rights granting it an easement by necessity through the adjacent properties owned by Appellees located at 574 and 573 Cull Road. R&B Farms filed a Motion to Dismiss pursuant to CR ² 12.02 and asserted Appellant had failed to state a claim upon which relief may be granted. More particularly, R&B Farms noted Appellant's only claim was for an easement by necessity which fails as a matter of law as there is no unity of ownership between the dominant and servient estates. The Dendingers subsequently filed a Motion to Dismiss and incorporated by reference the Motion to Dismiss filed by R&B Farms.

Appellant responded to the Motions to Dismiss and also filed a Cross-Motion for Summary Judgment. Therein, Appellant acknowledged there was no unity of title between Appellant's property and Appellees’ properties, and the properties had not been severed from the same tract. Nevertheless, Appellant sought a declaration of rights for an easement by necessity based upon public policy favoring the beneficial use of land.

By Opinion and Order entered February 20, 2025, the circuit court denied Appellant's Motion for Summary Judgment and granted Appellees’ Motions to Dismiss which were converted to Motions for Summary Judgment as matters outside the pleadings were considered. CR 12.03; see Harrodsburg Indus. Warehousing, Inc. v. MIGS, LLC, 182 S.W.3d 529, 533 (Ky. App. 2005) (holding that “[w]here matters outside the pleadings are considered on a motion to dismiss for failure to state a claim, the motion must be treated as one for summary judgment”).

The February 20, 2025 Opinion and Order granting summary judgment in favor of Appellees provided:

The three prongs of an easement by necessity are defined in Carroll v. Meredith, 59 S.W.3d 484 (Ky. [ ] App. 2001). Under the current Kentucky case law, a claim for an easement of necessity fails when it cannot establish unity of ownership of the dominant and servient estates.

In the instant case, [Appellant] concedes that there is no unity of ownership between the dominant and servient estates, as the servient estate is presently underwater. The Army Corps[ ] of Engineers in establishing Taylorsville Lake in Spencer County, Kentucky, took possession of real estate in the area used to construct the lake and real estate surrounding the lake project, through eminent domain․ [Appellant] asserts that accessing their real property via Taylorsville Lake and then USA/Army Corps[ ] property/real estate, is trespassing, and they do not have the legal right to traverse this property. The property is landlocked, and [Appellant's] members knew this at the time of purchase

In the final analysis, [Appellant] now seeks access to their landlocked property by establishing an easement by necessity through the land of another. They have accessed the property to date by the nearby lakeshore and then transversing USA/Army Corps[ ] of Engineer property without incident (no evidence in the record to the contrary). Although Kentucky public policy favors [Appellant] to be able to access and utilize this real estate, the Court is unwilling to deviate from the doctrine of stare decisis under these circumstances, due to Kentucky public policy concerns.

R. at 195-96. This appeal follows.

Summary judgment is governed by CR 56.03 which provides summary judgment is appropriate where there exists no genuine issue of material fact and the moving party is therefore entitled to judgment as a matter of law. In other words, summary judgment may be granted when “as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the movant.” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 483 (Ky. 1991) (internal quotation marks and citation omitted). A “circuit court's decision to grant summary judgment is reviewed de novo.” Carroll v. Carroll, 355 S.W.3d 463, 466 (Ky. App. 2011). And, a party opposing summary judgment must present affirmative evidence to defeat a properly supported motion for summary judgment. Id. at 469.

Appellant contends the circuit court erred by granting summary judgment in favor of Appellees thereby denying Appellant an easement by necessity across Appellees’ property. Essentially, Appellant acknowledges it cannot meet the requirements of an easement by necessity but urges this Court, as a matter of public policy, to grant such an easement.

It is well settled that “[a]n easement by necessity is based primarily on the policy favoring beneficial use of property.” Gosney v. Glenn, 163 S.W.3d 894, 900 (Ky. App. 2005) (citations omitted). There are, however, three prerequisites to the creation of an easement by necessity: “(1) unity of ownership of the dominant and servient estates; (2) severance of the unity of title by a conveyance of one of the tracts; and (3) necessity of the use of the servient estate at the time of the division and ownership to provide access to the dominant estate.” Id. (citations omitted). As to the third prerequisite, the necessity of access “has generally been defined as absolute necessity such as where property is landlocked or otherwise inaccessible.” Meredith, 59 S.W.3d at 491 (citations omitted). Furthermore, “[e]asements are not favored, and the party claiming the right to an easement bears the burden of establishing all the requirements for recognizing the easement.” Gosney, 163 S.W.3d at 899 (citations omitted).

In the case sub judice, it is undisputed that Appellant's property is landlocked. It is further undisputed that the property has neither unity of title nor ownership with the properties owned by Appellees. More particularly, Appellant concedes the 32.08-acre tract was “severed from an entirely separate tract” and that “the tract to which [Appellant's] property belonged and was severed from is now completely underwater. Thus, there is no servient estate from which [Appellant] can seek an easement by necessity, it is an impossibility.” Appellant's Brief at 7. Appellant concedes the prerequisites to establishing an easement by necessity cannot be satisfied. Nevertheless, Appellant asserts that if Kentucky precedent were followed Appellant would have no remedy and the landlocked property would be rendered useless. Therefore, Appellant believes an easement by necessity based upon public policy favoring beneficial use of land should prevail regardless of precedent.

While we agree public policy favors the beneficial use of land, the law of this Commonwealth is clear that a prerequisite to the creation of an easement by necessity is unity of ownership of the dominant and servient estates. See Gosney, 163 S.W.3d at 900. Here, it is undisputed there was no unity of ownership. In fact, not only does Appellant acknowledge there is no unity of ownership between the tracts, Appellant admittedly possessed knowledge of the landlocked status of the property at the time of purchase. Although we are cognizant of the precarious situation Appellant finds itself in, we are constrained to follow the well-established precedent of this Commonwealth regarding the prerequisites for establishing an easement by necessity. As there is no unity of ownership, the circuit court properly denied Appellant an easement by necessity across Appellees’ properties.

We view any remaining contentions of error as moot or without merit.

For the foregoing reasons, we affirm the February 20, 2025 Opinion and Order of the Spencer Circuit Court granting summary judgment in favor of Appellees.

FOOTNOTES

1.   AP & DP, LLC is a registered limited liability company organized under the laws of the Commonwealth of Kentucky. The members of AP & DP, LLC are Douglas W. Peters and Andrew W. Peters.

2.   Kentucky Rules of Civil Procedure.

JONES, L., JUDGE:

ALL CONCUR.