Deborah Callahan v. Gary Hensley

• Court: Court of Appeals of Kentucky
• Decided: March 30, 2023
• Docket: 2022 CA 000157
• Status: Unknown

Opinion

RENDERED: MARCH 31, 2023; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2022-CA-0157-MR

DEBORAH CALLAHAN; CHERYL GAUNCE; AND KENNETH H. CLEM APPELLANTS

APPEAL FROM SCOTT CIRCUIT COURT v. HONORABLE BRIAN PRIVETT, JUDGE ACTION NO. 21-CI-00144

GARY HENSLEY; CHUCK HENSLEY; GLENN CAMPBELL DRURY; JULIE A. DRURY; AND LUKE DRURY APPELLEES

OPINION REVERSING AND REMANDING

** ** ** ** **

BEFORE: THOMPSON, CHIEF JUDGE; COMBS AND JONES, JUDGES.

COMBS, JUDGE: In this property dispute, Deborah Callahan, Cheryl Gaunce,

and Kenneth H. Clem (Appellants) appeal from a summary judgment of the Scott

Circuit Court which held that a recorded deed in their chain of title conveyed an absolute fee simple interest in a private way bisecting their property. On the

contrary, Appellants argue that the recorded deed conveyed merely an easement.

After our review, we are compelled to agree. Consequently, we reverse and

remand for entry of an order consistent with this Opinion.

Our analysis renders a recitation of the entire procedural history of the

litigation unnecessary. Our summary of the evidence is similarly abbreviated. The

following pertinent facts, which are undisputed, present a single question of law.

By a deed dated December 27, 1900, Nancy Anderson conveyed to

her son, Abe Warth, a private way from Warth’s property over her own property to

Finnell Turnpike in Georgetown. It was a narrow strip of land that bisected

Anderson’s property and provided ingress and egress for Warth. Nancy Anderson

is the predecessor in interest of “the Clem property” now owned by Deborah

Callahan, Cheryl Gaunce, and Kenneth H. Clem.

On March 20, 2021, Callahan, Gaunce, and Clem filed an action to

quiet title against Gary Hensley, Chuck Hensley, Glenn Campbell Drury, Julie A.

Drury, and Luke Drury (the Appellees). The Appellants alleged that the Hensleys

and the Drurys (again, whose predecessor in interest was Warth, Anderson’s son,

who originally received the interest in the passway) were overburdening the

passway easement and wrongfully excluding them from their property. They also

-2- alleged that the Hensleys and Drurys laid a water line beneath the easement

without permission.

The Hensleys and Drurys answered the complaint and filed a

counterclaim in which they alleged that Anderson’s deed to Warth conveyed fee

simple absolute interest in the passway -- and not merely an easement.

On May 18, 2021, Appellants Callahan, Gaunce, and Clem filed a

motion for summary judgment. They argued that the Anderson deed conveyed

only an easement and not an interest in fee simple. In June 2021, the Appellees,

the Hensleys, and the Drurys filed a cross-motion for summary judgment. They

argued that the conveyance from Anderson to Warth in 1900 conveyed a fee

simple interest in the disputed way. On July 19, 2021, the Scott Circuit Court

granted summary judgment to the Hensleys and Drurys. This timely appeal

followed.

On appeal, Callahan, Gaunce, and Clem argue that the trial court erred

by granting summary judgment to the Hensleys and Drurys. We agree.

The Kentucky Rules of Civil Procedure (CR) provide that summary

judgment will be granted where the pleadings, depositions, answers to

interrogatories, stipulations, admissions, and/or affidavits show that there is no

genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law. CR 56.03. The parties agree that there are no

-3- genuine issues of material fact concerning construction of the conveyance and that

interpretation of the deed is entirely a matter of law. Consequently, the issue was

appropriate for summary judgment. See Shields v. University of Louisville

Foundation, Inc., 536 S.W.3d 706 (Ky. App. 2017) (The interpretation of

a deed presents an issue of law.). Therefore, we may not defer to the trial court’s

interpretation of the conveyance. Vorherr v. Coldiron, 525 S.W.3d 532 (Ky. App.

2017). Our review is de novo. Hazard Coal Corp. v. Knight, 325 S.W.3d 290 (Ky.

2010); Dukes v. Link, 315 S.W.3d 712 (Ky. App. 2010).

In determining the interest conveyed by a deed, we must seek to give

effect to the parties’ intentions as gathered from the four corners of the instrument.

Hoskins Heirs v. Boggs, 242 S.W.3d 320 (Ky. 2007) (citing Phelps v. Sledd, 479

S.W.2d 894, 896 (Ky. 1972)). The Anderson deed’s granting clause expressly

conveys “a pass way” to Warth “through the land of [Anderson.]” The deed

describes the location of the private way as follows:

It is understood and agreed by & between both parties herein that said road or pass-way is to be about 30 ft wide through [Anderson’s] land . . . said road or passway is about ¼ mile from [Warth’s land] through the land of [Anderson] to the aforesaid Finnell turnpike.

(Emphasis added.)

Specific reference in a deed to a “passway” or “road” generally

conveys an easement -- not a fee simple interest. Holbrook v. Hammond, 302 Ky.

-4- 10, 12-14, 192 S.W.2d 746, 747-48 (1946) (“the general grant of a passway, or

right of way, over the land of the grantor at a particular place, does not confer

either the possession or the right of possession of the land, but the mere right of

way, or of passing over it.”) Moreover, the interest conveyed by Anderson’s deed

is limited to a specific use and purpose remedy -- namely, to access the turnpike.

Easements are characterized as interests in property conveying the

right to use land for specific, limited purposes. Hogg v. Hogg, 619 S.W.3d 921

(Ky. App. 2020). Additionally, the deed describes the conveyed interest as passing

“through the land of [Anderson]” and “through [Anderson’s] land.” Language

indicating that the private way crosses Anderson’s property signaled her intention

to retain ownership of that property and to convey merely an easement. Finally,

we note that only nominal consideration was paid for the interest conveyed. While

this fact by itself is not persuasive (particularly where the parties to the deed were

blood relatives), it is nonetheless a factor to be considered in the analysis. Read

together, the language used in the deed appears to convey only a right to use a

designated path over Anderson’s property. It does not indicate that the conveyance

intended to create or to pass an estate in fee.

However, the habendum clause of the deed provides that Anderson

conveys the interest “[t]o have and to hold . . . with all the appurtenances thereon

to [Warth] his heirs and assigns forever with covenant of general warranty[.]” The

-5- Hensleys and the Drurys argue that this language supports construction of the deed

as conveying a fee simple interest in the strip of land to Warth. While we

acknowledge their premise, the language used in the clause is only one factor

among several that we must consider in determining whether the parties intended

to grant a fee interest or an easement. Historically, the language of the granting

clause has been given precedence over the verbiage of the habendum clause. See

Kentucky Real Estate Bd. v. Smith, 272 Ky. 313, 114 S.W.2d 107 (1938).

Construing the language of the entire instrument, particularly the

granting clause, we conclude that the intention and purpose of the parties in

executing it was to convey an easement rather than an interest in fee simple. The

express language of the deed conveyed an easement to benefit the property now

owned by the Hensleys and the Drurys.

We reverse the order of the Scott Circuit Court, and we remand for

entry of an order consistent with this Opinion.

ALL CONCUR.

BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES:

Emmett Daniel Clifford Neil E. Duncliffe Cynthiana, Kentucky Georgetown, Kentucky

-6-