RENDERED: NOVEMBER 20, 2020; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-1384-MR
BETTY BOWLES APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT v. HONORABLE JAY A. WETHINGTON, JUDGE ACTION NO. 11-CI-01671
CITY UTILITY COMMISSION OF THE CITY OF OWENSBORO, KENTUCKY D/B/A OWENSBORO MUNICIPAL UTILITIES; ATMOS ENERGY CORPORATION; BELLSOUTH TELECOMMUNICATIONS, LLC; AND TIME WARNER CABLE INFORMATION SERVICES (KENTUCKY), LLC APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, JONES, AND KRAMER, JUDGES.
CALDWELL, JUDGE: Betty Bowles appeals from the Daviess Circuit Court
order granting summary judgment to Appellees City Utility Commission of the
City of Owensboro, Kentucky d/b/a Owensboro Municipal Utilities; Atmos Energy Corporation; BellSouth Telecommunications, LLC; and Time Warner
Cable Information Services (Kentucky), LLC (hereinafter referred to as “the
utilities”). Having reviewed the record and the arguments of the parties, we affirm
the decision of the circuit court.
FACTS
In 2011, Appellant Betty Bowles (Bowles) bought a home in the
Fiddlesticks Subdivision in Owensboro, Kentucky, from the developer of the
subdivision. Shortly after her purchase, Bowles engaged a contractor to construct
a brick fence to encompass a portion of the rear of the home. The home was
situated at the end of a block and on a lot which was triangular in shape. A
neighbor noticed the construction and was concerned that the brick fence might be
encroaching on a public utility easement.
The recorded plat of the development clearly shows that adjacent to
the streets running on two sides of Bowles’ property is a small strip of grass, then
sidewalk, then another strip of grass, then the subject public utility easement. The
brick fence Bowles was having erected on her property was situated within the ten-
foot-wide easement. The easement was reserved for underground utilities and was
shared by various public utility companies including the electric company, telecom
company, and cable television provider, among others.
-2- When advised by the neighbor that there was construction occurring at
the Bowles’ property that might violate the public utility easement, an employee of
Owensboro Municipal Utilities (OMU) went to the subdivision and noted a brick
foundation and wall were in construction and appeared to encompass the public
utility easement. Bowles saw the employee noting the construction and
approached him. He informed her that she could not encroach upon the easement
and that the construction would have to stop. Bowles indicated she would not
interrupt the construction and intended to proceed with the erection of the brick
fence.
Counsel for OMU then sent notice to counsel for Bowles and advised
that the construction should be halted while the parties resolved the matter. The
matter was not resolved, Bowles completed the construction of the brick fence, and
the utilities filed a complaint in Daviess Circuit Court in late 2011 seeking a
permanent injunction requiring the removal of the brick fence.1
The circuit court entered an order granting the utilities’ motion for
summary judgment and issuing a permanent injunction. The circuit court reasoned
1 The complaint contained a second count concerning a zoning violation which was the subject of a separate litigation and appeal, wherein the zoning law was found to be unconstitutional. See Owensboro Metro. Bd. of Adj. v. Bowles, No. 2013-CA-001256-MR, 2014 WL 5786540 (Ky. App. Nov. 7, 2014), wherein a panel of this Court determined that the circuit court had properly found the zoning law “constituted an unlawful delegation of authority to the utilities that use public utility easements[.]” Id. at *1. The circuit court had held that the proper solution lay at common law and this Court agreed. Id. at *2. Thus, the matter was remanded, and it is from that remand that this action concerning a common law analysis now arises.
-3- that as each side had filed motions for summary judgment, there clearly was no
dispute of material fact. The court noted that the PUE (“public utility easement”)
was ten feet wide, noted on the subdivision plat, and was reserved for the use of all
utilities which would benefit all property owners in the neighborhood by allowing
utility providers to maintain and service utility lines.
The circuit court pointed out that the utility providers needed not only
access to the lines themselves, but also needed sufficient access to use machinery
which would allow them to access the buried lines, should the need to service or
upgrade the utility lines occur. As the brick fence restricted access to the easement
from the right of way, it was unreasonable as it “imposes a significant burden on
those utilities’ access to the easement, not only impeding service to Bowles’ house
but service to other residences in the subdivision.” Further, the circuit court found
it unreasonable for Bowles to expect the utilities to expend additional time and
resources to deconstruct her structure to reach their lines, should the need arise,
and was unpersuaded by Bowles’ offer to hold harmless any utility company which
would have to tear down the brick structure. It was unreasonable, also, for Bowles
to have persisted in constructing the fence after being told that it was violative of
the easement, the circuit court found.
Having found Bowles to have unreasonably encroached upon the
easement, the circuit court granted the utilities’ motion for summary judgment and
-4- entered a permanent injunction ordering Bowles to remove the structure from the
public utility easement within sixty (60) days of the entry of the order. The circuit
court later amended the order to provide for a stay of the injunction, if an
injunction bond of $15,000 was tendered and should an appeal be filed and,
unsurprisingly, Bowles appealed. We affirm.
STANDARD OF REVIEW
Appellate courts employ a de novo standard of review on questions
concerning the propriety of a trial court’s ruling on a motion for summary
judgment. Cmty. Fin. Servs. Bank v. Stamper, 586 S.W.3d 737, 741 (Ky. 2019).
In the seminal case of Steelvest, Inc. v. Scansteel Service Center, Inc., the
Kentucky Supreme Court explained that “the proper function of summary
judgment is to terminate litigation 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.” 807 S.W.2d 476, 480 (Ky. 1991). In reviewing such a
motion, the trial court must view the facts “in a light most favorable to the party
opposing the motion for summary judgment and all doubts are to be resolved in his
favor,” and in so doing must examine the proof to ensure that no real issue of
material fact exists. Id.
As the circuit court observed, when both parties file motions seeking
summary judgment, the question of whether there is a genuine issue of material
-5- fact in dispute is usually answered in the negative; both parties have already
insisted in their motions that there exists no genuine issue of material fact and
insist the question to be decided is merely a question of the application of law to
these undisputed facts. Here, there clearly is no dispute of fact; the only dispute
Free access — add to your briefcase to read the full text and ask questions with AI
RENDERED: NOVEMBER 20, 2020; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-1384-MR
BETTY BOWLES APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT v. HONORABLE JAY A. WETHINGTON, JUDGE ACTION NO. 11-CI-01671
CITY UTILITY COMMISSION OF THE CITY OF OWENSBORO, KENTUCKY D/B/A OWENSBORO MUNICIPAL UTILITIES; ATMOS ENERGY CORPORATION; BELLSOUTH TELECOMMUNICATIONS, LLC; AND TIME WARNER CABLE INFORMATION SERVICES (KENTUCKY), LLC APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, JONES, AND KRAMER, JUDGES.
CALDWELL, JUDGE: Betty Bowles appeals from the Daviess Circuit Court
order granting summary judgment to Appellees City Utility Commission of the
City of Owensboro, Kentucky d/b/a Owensboro Municipal Utilities; Atmos Energy Corporation; BellSouth Telecommunications, LLC; and Time Warner
Cable Information Services (Kentucky), LLC (hereinafter referred to as “the
utilities”). Having reviewed the record and the arguments of the parties, we affirm
the decision of the circuit court.
FACTS
In 2011, Appellant Betty Bowles (Bowles) bought a home in the
Fiddlesticks Subdivision in Owensboro, Kentucky, from the developer of the
subdivision. Shortly after her purchase, Bowles engaged a contractor to construct
a brick fence to encompass a portion of the rear of the home. The home was
situated at the end of a block and on a lot which was triangular in shape. A
neighbor noticed the construction and was concerned that the brick fence might be
encroaching on a public utility easement.
The recorded plat of the development clearly shows that adjacent to
the streets running on two sides of Bowles’ property is a small strip of grass, then
sidewalk, then another strip of grass, then the subject public utility easement. The
brick fence Bowles was having erected on her property was situated within the ten-
foot-wide easement. The easement was reserved for underground utilities and was
shared by various public utility companies including the electric company, telecom
company, and cable television provider, among others.
-2- When advised by the neighbor that there was construction occurring at
the Bowles’ property that might violate the public utility easement, an employee of
Owensboro Municipal Utilities (OMU) went to the subdivision and noted a brick
foundation and wall were in construction and appeared to encompass the public
utility easement. Bowles saw the employee noting the construction and
approached him. He informed her that she could not encroach upon the easement
and that the construction would have to stop. Bowles indicated she would not
interrupt the construction and intended to proceed with the erection of the brick
fence.
Counsel for OMU then sent notice to counsel for Bowles and advised
that the construction should be halted while the parties resolved the matter. The
matter was not resolved, Bowles completed the construction of the brick fence, and
the utilities filed a complaint in Daviess Circuit Court in late 2011 seeking a
permanent injunction requiring the removal of the brick fence.1
The circuit court entered an order granting the utilities’ motion for
summary judgment and issuing a permanent injunction. The circuit court reasoned
1 The complaint contained a second count concerning a zoning violation which was the subject of a separate litigation and appeal, wherein the zoning law was found to be unconstitutional. See Owensboro Metro. Bd. of Adj. v. Bowles, No. 2013-CA-001256-MR, 2014 WL 5786540 (Ky. App. Nov. 7, 2014), wherein a panel of this Court determined that the circuit court had properly found the zoning law “constituted an unlawful delegation of authority to the utilities that use public utility easements[.]” Id. at *1. The circuit court had held that the proper solution lay at common law and this Court agreed. Id. at *2. Thus, the matter was remanded, and it is from that remand that this action concerning a common law analysis now arises.
-3- that as each side had filed motions for summary judgment, there clearly was no
dispute of material fact. The court noted that the PUE (“public utility easement”)
was ten feet wide, noted on the subdivision plat, and was reserved for the use of all
utilities which would benefit all property owners in the neighborhood by allowing
utility providers to maintain and service utility lines.
The circuit court pointed out that the utility providers needed not only
access to the lines themselves, but also needed sufficient access to use machinery
which would allow them to access the buried lines, should the need to service or
upgrade the utility lines occur. As the brick fence restricted access to the easement
from the right of way, it was unreasonable as it “imposes a significant burden on
those utilities’ access to the easement, not only impeding service to Bowles’ house
but service to other residences in the subdivision.” Further, the circuit court found
it unreasonable for Bowles to expect the utilities to expend additional time and
resources to deconstruct her structure to reach their lines, should the need arise,
and was unpersuaded by Bowles’ offer to hold harmless any utility company which
would have to tear down the brick structure. It was unreasonable, also, for Bowles
to have persisted in constructing the fence after being told that it was violative of
the easement, the circuit court found.
Having found Bowles to have unreasonably encroached upon the
easement, the circuit court granted the utilities’ motion for summary judgment and
-4- entered a permanent injunction ordering Bowles to remove the structure from the
public utility easement within sixty (60) days of the entry of the order. The circuit
court later amended the order to provide for a stay of the injunction, if an
injunction bond of $15,000 was tendered and should an appeal be filed and,
unsurprisingly, Bowles appealed. We affirm.
STANDARD OF REVIEW
Appellate courts employ a de novo standard of review on questions
concerning the propriety of a trial court’s ruling on a motion for summary
judgment. Cmty. Fin. Servs. Bank v. Stamper, 586 S.W.3d 737, 741 (Ky. 2019).
In the seminal case of Steelvest, Inc. v. Scansteel Service Center, Inc., the
Kentucky Supreme Court explained that “the proper function of summary
judgment is to terminate litigation 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.” 807 S.W.2d 476, 480 (Ky. 1991). In reviewing such a
motion, the trial court must view the facts “in a light most favorable to the party
opposing the motion for summary judgment and all doubts are to be resolved in his
favor,” and in so doing must examine the proof to ensure that no real issue of
material fact exists. Id.
As the circuit court observed, when both parties file motions seeking
summary judgment, the question of whether there is a genuine issue of material
-5- fact in dispute is usually answered in the negative; both parties have already
insisted in their motions that there exists no genuine issue of material fact and
insist the question to be decided is merely a question of the application of law to
these undisputed facts. Here, there clearly is no dispute of fact; the only dispute
was whether, as a matter of law, Bowles’ actions were reasonable. We find they
clearly were not.
ANALYSIS
Preliminarily, although the owner of a servient estate has the right of
reasonable use of that portion of their property encompassed by the easement, such
right is subject to the rights of the holder of the dominant estate, and “the owner
cannot unreasonably interfere with the rights of the holder of the easement.” Com.,
Dep’t of Fish & Wildlife Res. v. Garner, 896 S.W.2d 10, 14 (Ky. 1995). The
question of law presented by this case is whether erection of a brick fence of
substance upon the public utility easement was a reasonable use by the servient
estate. It was not.
Bowles has insisted that her use was reasonable because it would be
unlikely that the utilities would have reason to access their lines for many years.
She also argued the lines buried were not high voltage, there was a gate in the brick
fence that the utilities could use should they need to access the easement, and she
-6- had offered permission to the utilities to dismantle the structure should the need
ever arise.
The circuit court considered all of these arguments and found them
unpersuasive, holding that Bowles’ action of continuing the construction after
being notified that her plans were an unreasonable encroachment on the easement
was, in fact, not a reasonable reaction. It should have been of no surprise to
Bowles that there was a public utility easement running along the boundaries of her
property as such was clearly delineated on the subdivision plat. Her actions of
ignoring warnings and proceeding should not allow her to now argue that the
dominant estate should accommodate her encroachment on their reasonable use of
their easement. “[T]he easement grantor may not interfere with the easement
holder’s use of the easement.” Sawyers v. Beller, 384 S.W.3d 107, 111 (Ky. 2012)
(citing Garner, 896 S.W.2d at 13-14).
We hold that the brick structure restricts the utilities’ use of the
easement. See Westphal v. Kentucky Utilities Co., 343 S.W.2d 367, 369 (Ky.
1960) (“It is certain the Company’s interest in the land does not deprive defendants
of the right to use their property in a proper manner as they see fit, provided they
do not interfere with the reasonable use or enjoyment of the easement.”). The
placement of the utility easement, adjacent to the sidewalks and the streets, is not
random; public utilities might have need of heavy equipment to make repairs and
-7- access the buried lines, and the easement is easily accessed by the nearby streets
and sidewalks, where such equipment could be parked. The presence of a brick
fence unreasonably interferes with the utilities’ ability to easily access the utility
lines contained within the utility easement.
Requiring the utilities to rely upon Bowles’ promise to recompense
them should they need to remove the obstruction is not reasonable, and as the
Appellees point out, is an admission that the structure is an obstruction to the use
of the easement and belies the unreasonableness of her use. See Cent. Ky. Nat. Gas
Co. v. Huls, 241 S.W.2d 986, 988 (Ky. 1951).2
CONCLUSION
For the foregoing reasons, we affirm the circuit court’s order granting
summary judgment for Appellees and the issuance of the permanent injunction
requiring Bowles to remove the structure from within the public utility easement.
KRAMER, JUDGE, CONCURS.
JONES, JUDGE, CONCURS IN RESULT ONLY.
2 “We call attention to the statement of appellees that they would either raise or move the building upon request that appellant might make proper inspection or properly patrol the line. This is an admission that there is a burden thrust upon the easement and a violation of the rights conferred by that easement even though it appears to appellees to be so minor as only to require a request to remove the building.” Cent. Ky. Nat. Gas Co. v. Huls, 241 S.W.2d 986, 988 (Ky. 1951).
-8- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
Keith Moorman Counsel for City Utility Commission Warren J. Hoffmann of the City of Owensboro, Kentucky Jason Halligan d/b/a Owensboro Municipal Utilities: Lexington, Kentucky Patrick D. Pace Stephen C. Pace R. Michael Sullivan Owensboro, Kentucky Jesse Mountjoy Owensboro, Kentucky Counsel for Atmos Energy Corporation: Mark R. Hutchinson
Counsel for BellSouth Telecommunications, LLC: Cheryl Winn
Counsel for Time Warner Cable Information Services (Kentucky), LLC: Michael J. Vetter, Sr.
-9-