APPELLANT v. CROWN COMMUNICATIONS INC AND CINGULAR REAL ESTATE HOLDINGS OF THE SOUTHEAST LLC APPELLEES

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Court of Appeals of Kentucky.

first home, LLc APPELLANT v. CROWN COMMUNICATIONS, INC.;  AND CINGULAR REAL ESTATE HOLDINGS OF THE SOUTHEAST, LLC APPELLEES

NO. 2010–CA–001701–MR

Decided: January 13, 2012

BEFORE:  TAYLOR, CHIEF JUDGE;  ACREE AND VANMETER, JUDGES. BRIEFS FOR APPELLANT:  J. Bruce Miller Norma C. Miller Louisville, Kentucky ORAL ARGUMENT FOR APPELLANT:  J. Bruce Miller Louisville, Kentucky BRIEF FOR APPELLEES:  Ashley W. Ward Matthew W. Breetz Lexington, Kentucky ORAL ARGUMENT FOR APPELLEES:  Ashley W. Ward Lexington, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

On December 1, 2000, appellant First Home, LLC, and appellee Crown Communications, Inc., entered into a Declaration of Easement Double which created an easement on and across real property owned by First Home for the benefit of Crown Communications.   The questions presented in this appeal are:  (1) whether the Jefferson Circuit Court erred in concluding the Declaration of Easement clearly and unambiguously created a perpetual easement and, in turn, properly refused to consider extrinsic evidence to ascertain the parties' intent, and (2) whether a perpetual easement constitutes an unreasonable restraint on alienation of property. Double Finding no error, we affirm the Jefferson Circuit Court's entry of declaratory judgment and order in favor of Crown Communications.

I. Facts and Procedure

On October 8, 1997, First Home entered into a Contract for the Sale/Purchase of real property owned by Carol and Charles Emge Double along Quillman Hill Road in Jefferson County (Emge Property) for the purpose of developing a subdivision.   Pursuant to the sale/purchase contract, First Home and the Emges intended to exclude from the sale a small section of land containing a cell tower (Cell Tower Site), along with a twenty foot access easement to the Cell Tower Site. Despite the parties' intentions, the necessary subdivision plat needed to exclude the Cell Tower Site and access easement from the sale was not prepared and, therefore, not recorded prior to the scheduled closing date.   Nevertheless, for reasons unclear to this Court, First Home and the Emges determined it was necessary for them to immediately conclude the sale of the Emge Property, and on November 6, 1997, the Emges conveyed the Emge Property to First Home without excluding the Cell Tower Site and access easement.   However, in conjunction with the transfer of the Emge Property to First Home, First Home and the Emges entered into a separate written agreement in which First Home agreed to convey the Cell Tower Site back to the Emges once the required subdivision plat was complete.   First Home ultimately failed to do so.

At the time First Home purchased the Emge Property, the Cell Tower Site was subject to a lease between the Emges and Crown Communications (Cell Tower Lease). Double Despite the sale of the Emge Property to First Home, the Emges continued to receive the payments due under the Cell Tower Lease from Crown Communications.

Shortly after First Home acquired the Emge Property, Crown Communications began experiencing considerable difficulty accessing the Cell Tower Site. In order for Crown Communications to reach the access easement leading to the Cell Tower Site, it first had to traverse land owned by Donald May. At some point, Mr. May allegedly began guarding his property with a shot gun while demanding a $1,000 per month fee from Crown Communications to utilize his property to reach the access easement and, in turn, the Cell Tower Site.Double As a result of this complication, Crown Communications determined it was necessary to establish a more definite access arrangement with the former and current owners of the Cell Tower Site.

Accordingly, on November 6, 2000, Crown Communications obtained a Release of Contractual Rights (Including Purchase Rights and Easement, Access, and Right of Way Rights) from the Emges.   The Emge Release provided that the Emges waived and released any rights they had to re-acquire from First Home any portion of the Emge Property, including the Cell Tower Site.Double As consideration for the Emge Release, Crown Communications agreed to continue making payments to the Emges through April 2009 in the amount set forth in the Cell Tower Lease.

Additionally, on December 1, 2000, First Home and Crown Communications entered into a Declaration of Easement which granted Crown Communications an easement in the Cell Tower Site, as well as a new right-of-way easement thereto. Double Particularly, in return for $10,000 and certain improvements to the right of way easement, paragraph two of the Declaration of Easement provided:

[First Home] grants and conveys to [Crown Communications] the perpetual right to exclusively use the area leased under the aforementioned [Cell Tower] Lease Agreement, and any amendment thereto, hereinafter referenced as the “Premises,” together with the non-exclusive Right of Way for ingress and egress, seven (7) days per week, 24 hours per day, on foot or vehicle, including trucks, and for the installation and maintenance of utilities, wires, poles, cables, conduits and pipes over, under or along a thirty (30) foot wide Right of Way across the Property extending from the nearest public right of way to the Premises.   The Premises and the Right of Way are described in the survey attached ․ as Exhibit “A” and incorporated herein.

Additionally, paragraph four of the Declaration of Easement provided, in pertinent part:

[First Home] hereby assigns the aforementioned [Cell Tower Lease] and any other leases on the Premises to [Crown Communications] with the result of such assignment being that any current lessee from [First Home] of all or a portion of the Premises ․ shall pay rent to [Crown Communications] under any such lease or leases and all rights and obligations under such lease or leases shall thereafter [be] between [Crown Communications] (as assignee from [First Home] ) and the lessee or lessees under such lease or leases.

Further, the Declaration of Easement provided that the perpetual easements created would expire only upon the non-use of the Cell Tower Site for a period of six calendar months.   Paragraph seventeen of the Declaration of Easements stated:

17. Reversionary Clause.   Non-use of the Premises for the uses permitted herein for a period in excess of six (6) calendar months shall be deemed an abandonment and the easement and all rights of [Crown Communications] shall revert back to [First Home], its successors and assigns;  provided however, that if [Crown Communications] during the said (6) calendar months in good faith commences and timely pursues reconstruction and replacement of the existing tower, the construction and replacement period shall not be considered a non-use.

For the next eight to nine years, Crown Communications indisputably accessed and used the right-of-way easement and Cell Tower Site in accordance with the terms of the Declaration of Easement.

On December 26, 2008, the Emges assigned their interest in the Cell Tower Lease to First Home. Shortly thereafter, on January 16, 2009, First Home notified Crown Communications of the assignment.

The Cell Tower Lease contained an April 2009 expiration date.   However, it also provided for automatic renewal for one-year periods unless either party terminated the lease by notice to the other party six (6) months prior to the termination.   In April 2009, without notice, Crown Communications stopped making lease payments.   On June 3, 2009, First Home notified Crown Communications it was terminating the Cell Tower Lease for nonpayment.   In response, Crown Communications informed First Home that paragraph two of the Declaration of Easement granted Crown Communications the perpetual right to use the Cell Tower Site and corresponding right of way, and that, pursuant to paragraph four of the same document, First Home waived and released any right to receive rent payments pursuant to the Cell Tower Lease.   As a result, Crown Communications declared it owed no rents to First Home.

As a result of the disagreement between First Home and Crown Communications regarding the nature of the easements at issue and rents due, on August 14, 2009, First Home filed a declaratory rights action asking the Jefferson Circuit Court to adjudicate the parties' respective rights and interests in the Cell Tower Site and corresponding right of way under the Declaration of Easement.   Particularly, First Home sought a declaratory judgment that the easements created in the Declaration of Easement expired when the Cell Tower Lease expired.

In response, on October 26, 2009, Crown Communications filed a counter-claim seeking a declaratory judgment that the Declaration of Easement remain in full force and effect and that, pursuant thereto, Crown Communications owns a perpetual easement in both the Cell Tower Site and the corresponding right of way.   Crown Communications also asked the circuit court to declare that the easements established in the Declaration of Easement did not terminate upon the expiration of the Cell Tower Lease, but instead only terminated upon their non-use as set forth in paragraph seventeen of the Declaration of Easement.

Thereafter, on December 11, 2009, Crown Communications filed a motion for summary declaratory judgment on the grounds that the Declaration of Easement clearly and unambiguously granted it a perpetual easement in both the Cell Tower Site and the right of way thereto and, as a result, Crown Communications was entitled to judgment as a matter of law.   On May 10, 2010, the circuit court entered a declaratory judgment in Crown Communications' favor, finding the Declaration of Easement created permanent easements in the Cell Tower Site and access right of way, and the easements were not limited to the Cell Tower Lease's duration.

On May 18, 2010, First Home filed a timely motion pursuant to CR 59.05 to alter, amend, or vacate the judgment.   Thereafter, on June 3, 2010, First Home filed a motion for leave to file an amended complaint to assert a fraud claim against Crown Communications.   As the basis for the fraud claim, First Home asserted that Crown Communications recorded “Exhibit B” with the Declaration of Easement without First Home's knowledge or consent, despite the fact that Exhibit B was not referenced by or incorporated in the Declaration. Double The circuit court granted First Home's motion and ordered the amended complaint filed.

On June 25, 2010, Crown Communications filed a motion to dismiss First Home's amended complaint on the grounds that (1) the circuit court lacked jurisdiction to grant First Home leave to file an amended complaint, and (2) the amended complaint failed to state a claim upon which relief may be granted.   On June 28, 2010, the circuit court denied First Home's CR 59.05 motion and granted Crown Communications' motion to dismiss First Home's amended complaint.   First Home promptly appealed.

II. Summary Judgment

Our task in reviewing a grant of summary judgment is to determine whether the circuit court correctly concluded that no genuine issue exists as to any material facts, and whether based on such facts the moving party was entitled to judgment as a matter of law.  Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App.1996).   Because only legal questions and the existence, or non-existence, of material facts are considered by the appellate court, a grant of summary judgment is reviewed de novo.  Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky.App.2001).

Additionally, we owe no deference to the circuit court's interpretation of the Declaration of Easement because “the construction and interpretation of a contract, including questions regarding ambiguity, are questions of law to be decided by the court.”  Frear v. P.T.A. Industries, Inc., 103 S.W.3d 99, 105 (Ky.2003) (citing First Commonwealth Bank of Prestonsburg v. West, 55 S.W.3d 829, 835 (Ky.App.2000));  see also Cantrell Supply Inc. v. Liberty Mutual Insurance Co., 94 S.W.3d 381, 385 (Ky.App.2002) (“Generally, the interpretation of a contract, including determining whether a contract is ambiguous, is a question of law for the courts and is subject to de nov o review.”).   With these principles in mind, we turn to the matter before us.

First Home contends the Declaration of Easement is ambiguous as to the duration of the easements created and, as a result, the circuit court improperly granted Crown Communications' summary declaratory judgment.   Particularly, First Home asserts the Declaration of Easement is unclear as to whether the easements created are perpetual in nature, or whether the easements are tied to and contingent upon the existence of the Cell Tower Lease.   As a result, argues First Home, the circuit court erred in refusing to consider extrinsic evidence in ascertaining the parties' intent concerning the easements' durations.   First Home further asserts the relevant extrinsic evidence, which the circuit court should have reviewed, reveals First Home intended to provide Crown Communications with the exclusive right to utilize the Cell Tower Site only as long as the Cell Tower Lease remained in effect;  once the Cell Tower Lease expired, so did the easements.   First Home also asserts a genuine issue of material fact exists concerning the validity and supposedly fraudulently character of Exhibit B to the Declaration of Easement, precluding summary declaratory judgment.

In response, Crown Communications contends the Declaration of Easement, on its face, clearly and unambiguously granted Crown Communications a perpetual easement in the Cell Tower Site and right of way thereto.   Crown Communications also asserts the Declaration of Easement unambiguously and clearly provided that the easements created only expire upon the non-use of the easements.   As a result, Crown argues, the circuit court properly refused to consider extrinsic evidence concerning the parties' intent as to the easements' expiration, and properly granted it summary declaratory judgment.   Crown Communications' argument is well-taken.

A. No Genuine Issue of Material Fact Regarding Ambiguity

If there is an ambiguity in the Declaration of Easement, this is a material fact about which there is a genuine issue precluding summary judgment.   See Cook United, Inc. v. Waits, 512 S.W.2d 493, 495 (Ky.1974);  CR 56.03.   “[B]ecause our resolution of the ambiguity question will dictate how our interpretive analysis will proceed,” we must first determine whether the Declaration of Easement is ambiguous as to the duration of the easements created.  Frear, 103 S.W.3d at 105–06.

“A contract is ambiguous if a reasonable person would find it susceptible to different or inconsistent, yet reasonable, interpretations.”  Cantrell Supply Inc., 94 S.W.3d at 385;  Frear, 103 S.W.3d at 106 (“An ambiguous contract is one capable of more than one different reasonable interpretation.”);  Transport Ins. Co. v. Ford, 886 S.W.2d 901, 905 (Ky.1994) (explaining that, in determining if an ambiguity exists in a written instrument, this Court must first decide whether “the contract provision is susceptible to inconsistent interpretations”).   However, “an otherwise unambiguous contract does not become ambiguous when a party asserts ․ that the terms of the agreement fail to state what it intended.”  Frear, 103 S.W.3d at 107.   Stated differently, “[t]he fact that one party may have intended different results ․ is insufficient to construe a contract at variance with its plain and unambiguous terms.”  Cantrell Supply Inc., 94 S.W.3d at 385.   As succinctly explained by our sister state, we are simply unwilling to “torture words to import ambiguity into a contract where the ordinary meaning leaves no room for ambiguity.”  McCarthy v. Chromium Process Co., 13 A.3d 715, 720 (Conn.App.2011).

Where the contract's language is clear and unambiguous, the agreement is to be given effect according to its terms, and “the court will interpret the contract's terms by assigning language its ordinary meaning and without resort to extrinsic evidence.”  Frear, 103 S.W.3d at 106.   Importantly, in construing a contract or written instrument, the goal “is to effectuate the intentions of the parties.”  Cantrell Supply Inc., 94 S.W.3d at 384.   Hence, in the absence of ambiguity, the parties' intention must be gathered from the four corners of the instrument at issue, and extrinsic evidence may not be admitted to vary the instrument's terms.  Hoheimer v. Hoheimer, 30 S.W.3d 176, 178 (Ky.2000).

Conversely, if an ambiguity exists, the court may refer to extrinsic evidence in ascertaining the parties' intent.  Crouch v. Crouch, 201 S.W.3d 463, 465 (Ky.2006).   Thus, if “a contract is ambiguous or silent on a vital matter, a court may consider parol and extrinsic evidence involving the circumstances surrounding execution of the contract, the subject matter of the contract, the objects to be accomplished, and the conduct of the parties.”  Cantrell Supply Inc., 94 S.W.3d at 385;  Frear, 103 S.W.3d at 106.

In the case sub judice, First Home does not dispute the Declaration of Easement grants Crown Communications an easement in both the Cell Tower Site and the right of way thereto.   Nor does First Home dispute the Declaration of Easement grants Crown Communications the “perpetual right” to use the easements.   Instead, First Home contends, in reviewing the Declaration of Easement in its entirety, the Declaration is ambiguous as to whether the easements created are permanent in nature, or whether they are contingent upon the Cell Tower Lease's continued existence.

To establish the existence of an ambiguity, First Home first relies upon paragraph two of the Declaration of Easement which, as noted, granted Crown Communications “the perpetual right to exclusively use the area leased under the aforementioned [Cell Tower] Lease Agreement, and any amendment thereto, hereinafter referenced as the “Premises[.]”  Particularly, First Home asserts that, by referencing the Cell Tower Lease in this paragraph, a reasonable person could conclude the “perpetual language” used in this section ties the easement to the existence of the Cell Tower Lease and any amendment thereto;  so when the Cell Tower Lease expired, the easements expired.   Accordingly, First Home argues, because the Declaration of Easement is susceptible to different, inconsistent interpretations, it is ambiguous.   We disagree.

A careful review of the Declaration of Easement reveals that the reference in paragraph two to the Cell Tower Lease was not intended to tie together the Cell Tower Lease and the easements created.   Instead, the Declaration of Easement referenced the “area leased under the Cell Tower Lease” to identify the location and boundaries of the Cell Tower Site easement.   In fact, throughout the agreement the Declaration of Easement refers to the area leased under the Cell Tower Lease as the “Premises.”   To find that the parties' reference to the Cell Tower Lease in paragraph two, in effect, caused the easements created to be contingent upon the existence of a Cell Tower Lease defies common sense and reason.   First Home's contention that paragraph two is ambiguous is without merit. Double

First Home also contends that an ambiguity concerning the easements' durations arises upon an examination of paragraph 13 of the Declaration of Easement.   Paragraph 13 provides that Crown Communications

shall pay all personal property taxes assessed on, or any portion of such taxes attributable to, the equipment used by [Crown Communications] on the Premises.  [First Home] shall pay when due all real property taxes and all other fees and assessments attributable to the Premises.  [Crown Communications] shall reimburse [First Home] as additional compensation for an increase in real estate taxes levied against [First Home] ․ which are attributable to or arise as a result of the improvements constructed by [Crown Communications].

Specifically, First Home asserts it is nonsensical to conclude that First Home would grant Crown Communications a perpetual easement and, at the same time, agree to continue paying the real estate taxes on the Cell Tower Site. Consequently, First Home argues an ambiguity exists because a reasonable interpretation of paragraph 13 and the Declaration of Easement as a whole would require an existing Cell Tower Lease for the easements to remain in effect.   First Home's argument lacks merit.

An easement is a “property right or interest in land” of another.  Illinois Central R.R. Co. v. Roberts, 928 S.W.2d 822, 826 (Ky.App.1996).   It is a “right, distinguished from ownership, to use in some manner the land of another for a specified purpose.”  Inter–County Rural Electric Co-op. Corp. v. Reeves, 294 Ky. 458, 171 S.W.2d 978, 983 (1943);  see also Henry Bickel Co. v. Texas Gas Transmission Corp., 336 S.W.2d 345, 347 (Ky.1960) (“An easement is a right distinguished from ownership ․ [and] is not a normal incident of a possessory land interest.   It is a privilege or an interest in land, but it is not an estate in land [or the] ‘land’ itself.” (citations omitted)).

Here, First Home, as the owner of the Emge Property, is also the owner of the Cell Tower Site subject to Crown Communications' easement.   Because First Home retains ownership of the Cell Tower Site, it is responsible for paying the land's property taxes.   See KRS 132.020.   Consequently, there is nothing inherently suspect concerning paragraph 13 of the Declaration of Easement which would cause a reasonable person to conclude the easements' durations are limited to the Cell Tower Lease's duration.

First Home next argues the Declaration of Easement is ambiguous with respect to its duration because, in paragraph four, First Home assigned its rights under the Cell Tower Lease to Crown Communications.   We reject First Home's claim of error.   First Home's assignment of the Cell Tower Lease to Crown Communications does not render the Declaration of Easement ambiguous with regard to the duration of the easements created.   In fact, the assignment of First Home's rights under the Cell Tower Lease is consistent with the grant of a perpetual easement because, as the holder of the easements, Crown Communications would also want control of the existing Cell Tower Lease pertaining to the use of the Cell Tower Site.Double

Further, First Home contends the reversionary clause set forth in paragraph seventeen of the Declaration of Easement creates an ambiguity.   Specifically, First Home argues paragraph seventeen implies the necessity of the existence of a leasehold interest and, as a result, an ambiguity exists as to whether the easements expired at the same time as the Cell Tower Lease.

As set forth in full above, paragraph seventeen provides that, if Crown Communications fails to use the Cell Tower Site for six (6) continuous months, the easement shall be deemed abandoned and will revert back to First Home. This is consistent with general easement law concerning the non-use or abandonment of an easement.   See Roberts, 928 S.W.2d at 826 (explaining that, when an easement is abandoned, the easement no longer burdens the servient estate and “the servient owner is entitled to enjoyment free of burden”).   There is simply nothing in paragraph seventeen to indicate the easements' durations are contingent upon the Cell Tower Lease remaining in full force and effect.

In sum, we conclude the Declaration of Easement is free from ambiguity concerning the easements' durations and, as a result, no genuine issue of material fact exists with respect to this issue.

Finally, First Home asserts a genuine issue of material fact exists with respect to Exhibit B to the Declaration of Easement, precluding summary declaratory judgment.   Exhibit B constitutes a memorandum of intent between First Home and Crown Communications in which Crown Communications declares, inter alia, the parties are attempting to negotiate a permanent easement transaction.   First Home forcefully contends that Crown Communications fraudulently, and without First Home's knowledge, recorded Exhibit B along with the Declaration of Easement.   Crown Communications denies First Home's contention.   As a result of the dispute concerning Exhibit B's validity, First Home argues, the circuit court should have denied Crown Communications' motion for summary judgment and permitted discovery to proceed.   We disagree.

To reiterate, we will only overturn a grant of summary judgment if we find the existence of a genuine issue of material fact.  Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App.1996).   A material fact is one “that is significant or essential to the issue or matter at hand.”   Black's Law Dictionary (9th ed.2009).   Here, while a genuine issue may exist as to the validity and nature of Exhibit B, the resolution of that dispute is not material to the matter at hand, i.e., whether the Declaration of Easement is ambiguous and, if not, does the Declaration, on its face, grant Crown Communications a perpetual easement.

Exhibit B, though supposedly recorded as part of the Declaration of Easement, was not referenced by or incorporated in the Declaration.   See, e.g., Frontier Ins. Co. in Rehabilitation v. M.C. Management, No. 3:06–CV–597–H, slip op.   (W.D.Ky. May 15, 2009) Double (explaining the incorporation of an exhibit or outside document “is only effective where the document is specifically incorporated by reference”);  Buck Run Baptist Church, Inc. v. Cumberland Sur. Ins. Co., Inc. 983 S.W.2d 501, 503 (Ky.1998) (upholding incorporation where “the language of the performance bond clearly incorporate[d] by reference the contract”).   Consequently, Exhibit B does not fall within the “four corners” of the Declaration of Easement and, as a result, constitutes extrinsic evidence.   See, e.g., ABCO–BRAMER, Inc. v. Markel Ins. Co., 55 S.W.3d 841, 844 (Ky.App.2000) (providing that “if the contract is incorporated into the bond, the bond and underlying contract should be read together to determine the intention of the parties”);  Home Lumber Co. v. Appalachian Regional Hospitals, Inc., 722 S.W.2d 912, 914 (Ky.App.1987) (noting that only terms and conditions specifically incorporated by reference into the agreement are enforceable).   As explained in detail above, the circuit court properly determined the Declaration of Easement was not ambiguous.   Consequently, in determining the nature of the easements created, the circuit court confined its review to the “four corners” of the Declaration of Easement, which did not include Exhibit B. In fact, in its order denying First Home's CR 59.05 motion, the circuit court specifically reiterated that it did not reach its decision by considering or relying upon Exhibit B. The circuit court's conduct was proper.   Because Exhibit B is not part of the Declaration of Easement, had the circuit court relied upon Exhibit B in interpreting the Declaration, it would have committed reversible error.   See Hoheimer v. Hoheimer, 30 S.W.3d 176, 178 (Ky.2000) (explaining a trial court commits reversible error when it admits extrinsic evidence to vary the terms of an unambiguous instrument;  instead, the trial court must ascertain the parties' intention from the four corners of the instrument).   Accordingly, whether Crown Communications fraudulently recorded Exhibit B is not material to the issue of whether the Declaration of Easement is ambiguous and, if not, whether the Declaration granted Crown Communications perpetual easements in the Cell Tower Site and right of way thereto.

B. Crown Communications Entitled to Declaratory Judgment

Because we have concluded no genuine issue of material fact exists, we are next required to determine if Crown Communications is entitled to judgment as a matter of law.   In doing so, we are required to interpret and strictly enforce the Declaration of Easement according to its terms, without reference to extrinsic evidence.  Frear, 103 S.W.3d at 103.

At the outset, we note that the word “perpetual” is defined as “continuing forever” or “everlasting.”   Merriam–Webster's Collegiate Dictionary 866 (10th ed.2002).   Next, in reviewing the Declaration of Easement in its entirety and applying ordinary meaning to the words used, we find the Declaration's express and clear language in Paragraph 2 granted Crown Communications permanent easements in both the Cell Tower Site and right-of-way thereto, subject to paragraph seventeen's non-use and abandonment provisions.   In reaching our conclusion, we note the Declaration of Easement is void of any language tying the easements to the continued existence of the Cell Tower Lease.   While First Home may have intended to limit the life of the easements to the existence or term of the Cell Tower Lease, the Declaration of Easement simply contains no language limiting it in such a manner, and we are not at liberty to discard the Declaration's clear and unambiguous terms in favor of what First Home may have intended, but failed, to say.   See Frear, 103 S.W.3d at 107;  Cantrell Supply Inc., 94 S.W.3d at 385.   The Jefferson Circuit Court properly granted declaratory judgment in favor of Crown Communications.

III. A Per manent Easement Does not Constitute an Unreasonable Restraint on Alienation of Real Property

First Home next contends the circuit court's determination that First Home granted Crown Communications a perpetual easement violates Kentucky's laws relating to the alienation of real property and the rule against the unreasonable restraint on alienation of real property.   We disagree.

“The common-law rule against restraint on alienation was designed to prevent the taking from the owner of the power to alienate” or convey real property.   Three Rivers Rock Co. v. Reed Crushed Stone Co., Inc., 530 S.W.2d 202, 205 (Ky.1975);  Melton v. Melton, 221 S.W.3d 391, 393 (Ky.App.2007);  Black's Law Dictionary (9th ed.2009) (defining “alienation” as the “conveyance or transfer of property to another”).   The phrase “restraint on alienation” is defined as a “restriction, usually in a deed of conveyance, on a grantee's ability to sell or transfer real property.”   Black's Law Dictionary (9th ed.2009).

An easement, as explained above, is “property right or interest in land.”   Roberts, 928 S.W.2d at 826.   An easement may exist indefinitely, for a fixed period of time or until the fulfillment of the easement's particular purpose.   See 25 Am.Jur.2d Easements and Licenses § 94 (2004).   Indeed, there is nothing unusual or suspect about an easement lasting perpetually.   See Scott v. Long Valley Farm Kentucky, Inc., 804 S.W.2d 15, 16 (Ky.App.1991) (explaining that a permanent easement lasts forever unless terminated by the parties or by operation of law);  25 Am.Jur.2d Easements and Licenses § 94 (2004) (elucidating that an easement may be “of permanent duration and may continue in operation forever”);  28A C.J.S. Easements § 138 (2008) (“[A]n easement may be conveyed for any length of duration, or for unlimited duration, and the duration is to be determined by the terms of the grant.”).

Here, the easements created in the Declaration of Easement do not restrain or prevent First Home from alienating or conveying the Emge Property, nor do the easements prevent First Home from disposing of the property in a particular way or to a particular person.   In fact, First Home remains free to transfer the Emge Property, albeit subject to the easements, at its leisure.   Accordingly, we find the perpetual easements at issue do not violate the rule against unreasonable restraint on alienation.

IV. Conclusion

The Jefferson Circuit Court's May 10, 2010 declaratory judgment and order in favor of Crown Communications is affirmed.

ALL CONCUR.

ACREE, JUDGE:   Double Double