ResetAA Font size: Print

Court of Appeals of Kentucky.


NO. 2010–CA–002105–MR

    Decided: April 13, 2012




Richard Brennick and Gayle Brennick, owners of an 80– acre parcel of land in Clay County, appeal from a summary judgment of the Clay Circuit Court in favor of Bige and Margaret Hensley, adjoining landowners.   The issue presented is whether the Hensleys established their right to a prescriptive easement on the property owned by the Brennicks.   We conclude that a material issue of fact exists and, therefore, reverse.

In 2005, the Brennicks purchased property that fronts Gabbards Fork Road in Clay County from Sherry Brumley.   In 2006, the Hensleys purchased a tract located behind and partially surrounding the Brennicks' property, which was once owned by Bige Hensley's father.   After the purchase, Bige attempted to enter the Brennicks' property to access his newly purchased property claiming that prior to his ownership, he had used the pathway as a short cut to the property.   Richard Brennick objected and subsequently blocked the pathway.

In 2007, the Hensleys filed an action alleging a prescriptive easement or, alternatively, that the pathway was not located on the Brennicks' property.   In their response, the Brennicks admitted that the pathway was blocked but stated that the pathway was located on their property.   They denied that a prescriptive easement was acquired.

Although two years elapsed before any discovery, there was no motion to dismiss for lack of prosecution pursuant to CR 41.02 or a show cause order issued pursuant to CR 77.02.   Discovery was initiated by the Hensleys who deposed three former area residents.

Roy Allen, who hunted on and helped care for the property, recalled that prior to 1950 the pathway provided the only access to the property now owned by the Hensleys.   He testified that the pathway was used by the public to access a cemetery located on the property.   However, he moved from the property in 1960 and, since his return in 1980, only knew of the pathway being used for hunting and fishing.

Conley Byrd testified but had not lived in the area for 42 years.   He was able to recall using and repairing the pathway as a teenager and that the county performed maintenance.   He did not know of any use of the pathway in recent years except by the gas company to access a meter.

Barbara Jackson testified that since infancy she resided on the property now owned by the Brennicks until 1991, when she sold it to Walter and Shirley Brumley.   She was familiar with the pathway.   She testified that when she was a child, the pathway was used by the public but ceased to be used in 1955 or 1956 when other means of access were available.   The county maintained the pathway until early 1960 after which Bige's father performed yearly maintenance.   She further testified that Bige's father used the pathway to access his property and that after she purchased the Brennick property, she permitted Bige to use the pathway because she liked the Hensleys and testified that they did not have to ask for permission to use the pathway because they “always had it.”   She did not have knowledge of the use of the pathway after 1991.

On December 28, 2009, the Hensleys filed a motion for summary judgment alleging that there was no material issue of fact and attached Bige's affidavit stating the pathway runs from Gabbards Fork Road and traverses the edge of the Brennicks' property.   He stated that two gas wells drilled on his property in 1987 and 1988 remained in production and were accessed by the gas company by the pathway.   He further stated that until the 1950's, his father and his renters used the pathway.

After the motion for summary judgment was filed, the Brennicks filed a request for admissions requesting clarification regarding whether the Hensleys were alleging that the pathway is a county road and disputing the boundary line as defined in the Brennicks' deed.   The Hensleys did not respond.

The Brennicks filed a response to the summary judgment motion alleging that there were material issues of fact and that the proof was incomplete.   In support of its response, Richard Brennick filed an affidavit stating that when he first viewed the property, there was no indication that the pathway had been used and it was overgrown and unmaintained.   Soon after he moved onto the property, Bige informed him that he had a right to use the pathway and it was a county road.   After Richard discovered that the county records did not designate the pathway as a county road, he informed Bige that he had no right to use the pathway.   In 2006, the Brennicks returned from a trip and noticed that brush and grass had been cut on the pathway prompting them to place a bar across the pathway to prevent its use.   Richard's affidavit further stated that no one had attempted to use the pathway except the gas company to check gas meters located on his property.

The circuit court concluded that the evidence was uncontroverted that the Hensleys have a prescriptive easement stating that “central to the acquisition of a prescription right of way or easement is use over an extended period under a claim of right.”   Specifically, the circuit court found that the Hensleys and their predecessors in title used the pathway for over fifty years.   We conclude that the circuit court erred and reverse.

CR 56.03 provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”  “The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor.”  Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.1991).   On appeal, “[t]he standard of review ․ of a summary judgment is whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law.”  Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App.1996).   With this standard as our guide, we turn to the present case.

Easements are not favored in the law and, therefore, the party claiming the right to an easement bears the burden of establishing its elements.  Carroll v. Meredith, 59 S.W.3d 484 (Ky.App.2001).   The law of prescriptive easements is derived from the principles underlying adverse possession of property interests generally.   See Columbia Gas Transmission Corp. v. Consol of Kentucky, Inc., 15 S.W.3d 727, 730 (Ky.2000).   In order to obtain a right to a prescriptive easement, a claimant's adverse use must be “actual, open, notorious, forcible, exclusive, and hostile, and must continue in full force ․ for at least fifteen years.”  Jackey v. Burkhead, 341 S.W.2d 64, 65 (Ky.1960)(quoting Riley v. Jones, 295 Ky. 389, 174 S.W.2d 530, 531 (1943)).   A prescriptive easement is based on “a presumed grant that arises from the adverse, uninterrupted, and continued use for a statutory period.”  Illinois Central R. Co. v. Roberts, 928 S.W.2d 822, 827 (Ky.App.1996).   However, “the adverse possession of a grantee may be tacked on to that of his grantor to complete the statutory period.”  Martin v. Kane, 245 S.W.2d 177, 178 (Ky.1952).

In Cole v. Gilvin, 59 S.W.3d 468 (Ky.App.2001), the Court emphasized that a “continuous and uninterrupted use” of a pathway requires that the right to use the pathway be positively asserted.

Continuous, uninterrupted use of a passway without interference for 15 years or more raises a presumption the use was under a claim of right and the burden shifts to the opposing landowner to present evidence to rebut the presumption showing it was merely permissive.   However, it is well-established that if the right to use a passway at its inception is permissive, the existence of a prescriptive easement or even a presumption of a claim of right does not arise unless there has been some distinct and positive act of assertion of right made clearly known to the owner of the servient tenement.   The right to use a passway as a prescriptive easement cannot be acquired no matter how long the use continues if it originated from permission by the owner of the servient tenement.

Id. at 475–476 (emphasis added) (footnotes omitted).

The Cole Court affirmed the trial court's ruling that the Coles did not acquire a prescriptive easement because they failed to show adverse use of the pathway for more than fifteen years.   The Court pointed out the facts crucial to the trial court's conclusion:

As part of that ruling, the trial court found that any use of the passway from the 1940's to 1984, when a non-family member (the FHA) first acquired ownership of a portion of the property, was permissive.   The passway was used primarily by members of the Wells family, tenants of Marion Wells, and guests or invitees of the three Wells children who inherited the various tracts.   Todd Hurt and Polly Collins both testified that family members freely used the passway without having to obtain permission.   The trial court's finding that this use was permissive is supported by the evidence.   No distinct and clear assertion of a claim of right to use the passway was brought to the attention of the Gilvins until 1998 by Nelson Cole.

Id. at 476.

In this case, the evidence established that the pathway had been used by the Hensleys and their predecessors in title.   Jackson's testimony creates a material issue of fact regarding whether the use of the pathway was permissive and could not ripen into a prescriptive easement.   Id. at 475–476.   Moreover, although the deposition testimony established that until the late 1950's a pathway existed that was used by the public and the Hensleys' predecessors in title, the witnesses' testimony was based on events observed decades ago. Double

We have subjected the circuit court's judgment to scrutiny under our summary judgment standard.   Although this case has arguably lingered in the court system due to the parties' failure to conduct discovery, summary judgment was, nevertheless, improper.   We do not comment on whether the Hensleys can prove their allegations that they have a prescriptive easement or otherwise establish a right to use the pathway.

The summary judgment of the Clay Circuit Court is reversed and the case remanded for further proceedings.


LAMBERT, SENIOR JUDGE, DISSENTS and would affirm the well reasoned judgment of the trial court.


FindLaw Career Center

    Select a Job Title

      Post a Job  |  Careers Home

    View More