University of Vermont AAHS

Carter v. Bolling

Kentucky Court of Appeals
UNPUBLISHED,
2004 WL 2984907
December 23, 2004

Summary of Opinion

Plaintiff Carter has an easement (right of way) through defendantís Bollingís property in order to reach his own property.  Bolling erected gates on the easement.  Carter wanted the court to order Bolling to remove the gates to give him free access to the easements, but the trial court refused on the ground that Bolling erected the gates to keep his horses confined to his property.  In this opinion, the Court of Appeals agrees with the trial court that erecting the gates (so long as Carter has the ability to open them) was reasonable under the circumstances.

Text of Opinion

 Richard Carter appeals from a judgment of the Letcher Circuit Court in favor of Sheryl Bolling concerning Bolling's right to erect gates on easements held by Carter across Bolling's property. We conclude that the court did not abuse its discretion in deciding this issue in Bolling's favor. Thus, we affirm.

 Bolling owns two tracts of land in Letcher County, and Carter has two easements, one on the east end of Bolling's land and the other on the west end. The easements are 20-feet wide, and Carter uses them for accessing his property with large tractors and other vehicles. At the time Carter filed his complaint, Bolling's barn and a low power line partially obstructed the western roadway. Bolling erected a gate across the eastern roadway because she uses her land for horses and cattle ranching and requires the gate to prevent her animals from escaping.

 The court stated in its judgment that the easements are to be 20-feet wide in accordance with the deeds, that Bolling does not have to remove the barn but has to provide 20 feet of pathway from the fence, that Bolling must raise the power line, and that Bolling can put gates on each of the easements as long as she gives Carter keys to any gates that block his easement. Carter's appeal addresses only the ruling regarding the gates.

 When a trial court sits without a jury and issues findings of fact and conclusions of law, appellate courts review the findings for clear error or abuse of discretion. See CR 52.01 and Cole v. Gilvin, Ky.App., 59 S.W.3d 468, 472-73 (2001). A factual finding is not clearly erroneous if it is supported by substantial evidence. Owens-Corning Fiberglas Corp. v. Golightly, Ky., 976 S.W.2d 409, 414 (1998). Substantial evidence is evidence of substance and relevant consequence sufficient to induce conviction in the minds of reasonable people. Id. "[D]ue regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Sherfey v. Sherfey, Ky.App., 74 S.W.3d 777, 782 (2002). "Abuse of discretion in relation to the exercise of judicial power implies arbitrary action or capricious disposition under the circumstances, at least an unreasonable and unfair decision." Id. at 783.

 "The existing precedent in Kentucky indicates that the mere construction of gates by the servient estate does not violate the dominant estate owner's easement rights." Commonwealth, Dept. of Fish & Wildlife Resources v. Garner, Ky., 896 S.W.2d 10, 14 (1995), citing Herndon v. McKinley, Ky.App., 586 S.W.2d 294 (1979). Unless the grant of an easement expressly stipulates "that it shall be an open one, or the intention may be gathered from the particular terms and circumstances that it shall be, the owner of a servient estate may erect gates across the way, provided they are so located and erected as not to interfere unreasonably with the right of passage." Jenkins v. Depoyster, 299 Ky. 500, 504, 186 S.W.2d 14, 16 (1945). "The right to maintain a gate is stronger if it is necessary in order to protect the servient estate or permit its full use and enjoyment." Id.

 Bolling claimed that she needed the gate to prevent her animals from escaping, which is reasonable conduct designed to protect the servient estate and permit its full use and enjoyment. On the other hand, Carter argues that his easement rights prohibit Bolling from placing gates across the roadway. The express language in Carter's deeds does not provide that the gates are prohibited. Furthermore, the court did not find that the terms and circumstances showed that the intent of the parties was to prohibit gates on the easement.

 Carter has not explained why the presence of the gates is unreasonably burdensome, especially since the court ordered Bolling to supply Carter with keys. In short, we conclude that the court did not abuse its discretion by allowing Bolling to maintain the gates.

 The judgment of the Letcher Circuit Court is affirmed.


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