Greene v. Greenup County

530 S.W.3d 463
CourtCourt of Appeals of Kentucky
DecidedMay 29, 2015
DocketNO. 2014-CA-000236-MR
StatusPublished
Cited by1 cases

This text of 530 S.W.3d 463 (Greene v. Greenup County) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Greene v. Greenup County, 530 S.W.3d 463 (Ky. Ct. App. 2015).

Opinions

OPINION

VANMETER, JUDGE:

Gary and Patricia Greene appeal from the judgment of the Greenup Circuit Court, denying their motion for summary judgment and disposing of their petition for judicial review. The Greenes had sought judicial review of a Greenup County Fiscal Court action which closed a county roadway that provides access to their property. In closing the roadway, the fiscal court determined that the road was not “necessary” as that term is used in KRS1 178.116(l)(b) because the Greenes had other access to their property; the trial upheld the fiscal court’s decision. We hold that the fiscal court and the trial court erred in their determination of “necessary access” and therefore vacate the trial court’s judgment and remand to that court.

The facts are not in dispute. In 1996, the Greenes bought an approximately 77-acre parcel of undeveloped, rural property in Greenup County, Kentucky. The parcel is effectively “landlocked,” with no direct means of ingress or egress. For several years, the Greenes operated under a verbal agreement with adjoining landowner Ramey Fletcher to use a passway over his property. After Fletcher died, one of his heirs, Ina Fletcher Akiyama, gave the Greenes oral permission to continue using the passway to access their parcel.

In October 2012, the fiscal court conducted a hearing for the purpose of determining whether to close County Road 110, which bisects and provides access to the Greenes’ parcel according to county road maps from 1937 and 1954. It appears that the roadway would close by operation of statute and that the Greenes, as petitioners, initiated a fiscal court action to keep the roadway open. The Greenes acknowl[465]*465edged .at the hearing that the roadway did not serve a public need and that it had not been maintained or policed by the county or state within the preceding three years. However, the Greenes maintained that the roadway was “necessary” as defined by statute because the only alternative access to their parcel was via the permissive pass-way over the Fletcher parcel—a permissive use that was temporary and oral in nature. Indeed, Akiyama testified that the Greenes could continue to access their parcel over the Fletcher property, but she steadfastly refused to memorialize the easement in writing. After considering the testimony, the fiscal court determined that County Road 110 was not “necessary” as that term is used in KRS 178.116(l)(b), and decided to close it. In support of its conclusion, the fiscal court noted that the Greenes could access their parcel via the permissive passway over the Fletcher parcel.

The Greenes then sought review of the fiscal court’s decision in Greenup Circuit Court. They asserted that because the Fletcher easement was subject to termination by Akiyama without notice, County Road 110 was the only means of reliable access to their parcel and therefore should have been characterized as “necessary.” The circuit court opined that an access was not “necessary” merely because the pass-way is preferred to another means of access. Since other access was available to the Greenes’ parcel,'ie., over the Fletcher property, the circuit court determined that the fiscal court’s decision to close the roadway was not arbitrary. The circuit court denied the Greenes’ motion for summary judgment, and upheld the action of the fiscal court. The Greenes now appeal.

On appeal, the Greenes assert that the circuit court erred in upholding the fiscal court’s decision. They contend that County Road 110 provides them with “necessary access” to their land as that term is utilized' in KRS 178.116 and the fiscal court’s failure to make this determination constitutes an unlawful taking of property prohibited by the constitutions of Kentucky and the United States.

The appellate standard for reviewing the construction and application of statutes is de novo, Richardson v. Louisville/Jefferson County Metro Gov’t, 260 S.W.3d 777, 779 (Ky.2008). KRS. 178.116 states:

(1) Any county road, or road formerly maintained by the county or state, shall be deemed discontinued and possession shall revert to the owner or owners of the tract of land to which it originally belonged unless at least one (1) of the following conditions exists:
(a) A public need is'served by the road;
(b) The road provides a necessary access for a private person;
(c) The road has been maintained and policed by the county or state within a three (3) year period.

The parties agree that County Road 110 does not serve a public need and has not been maintained or policed by the county or state within a three-year period. The dispositive question, then, is whether section (b) is implicated, ie., whether County Road 110 provides “necessary access” for the Greenes. For purposes of KRS Chapter 178, “necessary access” includes “access to any farm, tract of land, or dwelling, or to any portions of such farm, tract of land, or dwelling.” KRS 178.116(5).

In a relatively recent, unpublished case, a panel of this court adopted .a federal court’s interpretation of the phrase “necessary access,” commenting that “ ‘[ajccess is not necessary merély because it is the preferred or easier route compared to another way.’” Muse v. Banks, 2010-CA-000101-MR, 2010-CA-000150-MR2011, [466]*4662011 WL 831970, at *3 (Ky.App.2011) (quoting Scott v. Garrard County Fiscal Court, 2010 WL 1038211, at *4 (E.D.Ky. 2010)).2 This court further stated, “[t]he legislature intentionally and with a specific purpose included the term ‘necessary’ several times within KRS 178.116. We are compelled to accord meaning to the term and 'construe the statute in such a manner as to render it effective in its entirety.” Muse, 2011 WL 831970, at *3. The term “necessary” within the context of access to or from private property and the public highways has a long history in Kentucky statutory and case law, and has not been used to denote “absolute necessity.” See, e,g., Louisville & Nashville R.R. Co. v. Ward, 150 Ky. 42, 44, 149 S.W. 1145, 1146 (1912) (in interpreting' Ky. Stat, § 4348,3 “the word ‘necessary’ in the statute is not to be read as though the words were ‘absolutely necessary! ]’ ”); Vice v. Eden, 113 Ky. 255, 262, 68 S.W. 125 (1902).

While the Greenes have a temporary means of accessing their property via the Fletcher parcel, as a matter of law, a limited, permissive easement can never ripen into a permanent, legal right of ingress and egress. See, e.g., Stephens v. Hamblin, 195 Ky. 428, 430, 242 S.W. 597, 598 (1922) (noting that “if the use of the passway at its inception is shown to have been permissive, no length of use will ripen it into a right”). And, in Ward, Kentucky’s highest court rejected the argument that “a. temporary outlet by permission over [a] neighbor’s latid” supplied a reasonable alternative to necessary access. 150 Ky.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Liz Davis v. American Turners-Louisville, Inc.
Court of Appeals of Kentucky, 2021

Cite This Page — Counsel Stack

Bluebook (online)
530 S.W.3d 463, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greene-v-greenup-county-kyctapp-2015.