RENDERED: NOVEMBER 13, 2020; 10:00 A.M. TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-1621-MR
LISA HOGG APPELLANT
APPEAL FROM LETCHER CIRCUIT COURT v. HONORABLE JAMES W. CRAFT, II, JUDGE ACTION NO. 16-CI-00305
DOROTHY ANN HOGG AND THE ESTATE OF JEFFREY HOGG APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES.
DIXON, JUDGE: Lisa Hogg appeals from the judgment following bench trial
determining that her property consists of 0.4 acres encumbered by a 12-foot right-
of-way running east to west over the property, entered on October 8, 2019, by the
Letcher Circuit Court. Following review of the record, briefs, and law, we affirm. FACTS AND PROCEDURAL BACKGROUND
This case, like any property dispute concerning multiple deeds
between family members, is somewhat complicated. In order to streamline our
Opinion and provide as clear as possible an understanding of the relevant facts and
law, we only discuss the conveyances pertinent to the issues on appeal.
Blackburn Hogg1 and his wife, Marie, owned property in fee simple
absolute in Letcher County, which they conveyed to their son, Christopher.
Christopher, in turn, granted Blackburn a life estate in the property and then later
conveyed his remainder interest to his brother and his wife, Jeffrey and Dorothy.
They, in turn, conveyed their remainder interest in only a small tract of this
property back to Christopher and his wife, Joella, by deed dated July 19, 1996, and
deed of correction dated September 3, 1996. The deeds purported to except a 12-
foot right-of-way running east to west across that portion of the property. The
deed of correction noted that the conveyance is subject to the life estate interest of
Blackburn. Approximately one year later, Christopher and Joella conveyed their
remainder interest in the tract to David2 (Jeffrey and Christopher’s brother) and his
wife, Lisa. On the same date, Blackburn conveyed his life estate to the same tract
1 Blackburn passed away on October 15, 1997. 2 David passed away in 2016, prior to the filing of the complaint.
-2- to David and Lisa so that the remainder and life estate interests merged. The small
tract was surveyed on April 23, 2016, by Jerry Ingram, Public Licensed Surveyor
(PLS). The Ingram survey depicts the property as consisting of 0.4 acres and
indicates the location of the 12-foot right-of-way described in the July 19, 1996,
deed.
On November 30, 2016, Jeffrey3 and Dorothy filed this quiet title
action, alleging that Lisa claims to own more property than was conveyed by them
to Christopher and Joella. They further assert that Lisa has interfered with the
quiet use and enjoyment of their property and that she has obstructed their use of
the easement across her property described in the July 19, 1996, deed.
Lisa answered and counterclaimed that she was conveyed an acre,
more or less, and that according to a survey of her property performed by Rick
Gadbury, she owns 1.13 acres. Lisa claimed she has controlled such property since
August 1997. She also asserted that any easement over her property had been
abandoned and was not, therefore, enforceable as to her property.
A bench trial was ultimately held on March 19, 2019, and July 22,
2019. After hearing testimony and visiting the property with trial counsel, the trial
court entered its judgment agreeing with Jeffrey and Dorothy and finding that
3 After this action was initiated, Jeffrey passed away and was replaced as a party to this action by his estate.
-3- Lisa’s property is the same as identified on the Ingram survey and that such lot was
encumbered by a 12-foot right-of-way running from east to west. This appeal
followed.
STANDARD OF REVIEW
The standard of appellate review in land dispute actions is well
established:
[F]actual findings “shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the [trier of fact] to judge the credibility of the witnesses.” A factual finding is not clearly erroneous if it is supported by substantial evidence. Substantial evidence is evidence of substance and relevant consequence sufficient to induce conviction in the minds of reasonable people. “It is within the province of the fact-finder to determine the credibility of witnesses and the weight to be given the evidence.” With respect to property title issues, the appropriate standard of review is whether the trial court was clearly erroneous or abused its discretion, and the appellate court should not substitute its opinion for that of the trial court absent clear error.
Cole v. Gilvin, 59 S.W.3d 468, 472-73 (Ky. App. 2001) (footnotes omitted).
SURVEY
On appeal, Lisa contends the trial court erred in adopting the Ingram
survey as the correct depiction of her land. Both July 19, 1996, and August 14,
1997, deeds describe the land at issue as:
BEGINNING on a point in the center of Big Bottom Branch, approximately 125 feet, East of Big Bottom Branch’s intersection with Kings Creek; thence up the
-4- hill some Southerly course to an iron pin; thence some easterly course around the hill to an iron pin; thence down the hill some Northerly course to a point in the center of Big Bottom Branch; thence down said Branch as it meanders to the BEGINNING; containing one acre more or less.
Jerry Ingram testified that based on this description, he was able to locate
monuments (roof bolts) on all four corners of the property. By contrast, Rick
Gadbury, Lisa’s surveyor, testified that he was only able to find three roof bolts,
which he believed marked corners of the property.
Lisa claims the trial court erred in assigning greater weight to
Ingram’s survey than Gadbury’s because the property description only mentioned
two markers. She claims two of the points in the deed description are points at the
center of a waterway and, thus, no marker could be placed. However, this
argument fails to account for Gadbury’s testimony that he also found more than
two markers. Lisa further argues the court gave less weight to Gadbury’s survey
because it found the third roof bolt was located by him after Lisa told him there
was a roof bolt in the back of the property. She also attacks the trial court’s
statement that it was concerned that Gadbury made his determination of the
property lines by the wording in the deed and testified that the information from
previous owners was not important to him. Additionally, Lisa contends the
Gadbury survey is the only one that complies with the estimated acreage of an
-5- acre, more or less. However, both surveyors testified that phrase was the least
reliable in the deed and not controlling in surveying the property described therein.
In its judgment, the trial court stated:
The third and fourth calls in the description cause the Court to find the testimony and opinion of Jerry Ingram, PLC, to be extremely credible. These calls state as follows: “thence some easterly course around the hill to an iron pin; thence down the hill some northerly course to a point in the center of Big Bottom Branch.” As depicted on the map submitted by Mr. Gadbury, Mr. Gadbury’s line does not go “around the hill” but goes in a straight line to a point beside Big Bottom Branch. Furthermore, at the point where Mr. Gadbury located his third monument (roof bolt) there is no going down the hill in a northerly course to a point in the center of Big Bottom Branch.
This was the crux of the trial court’s decision. It is also unchallenged by Lisa.
This finding was supported by substantial evidence and, therefore, is neither
clearly erroneous nor an abuse of discretion. Thus, we must affirm.
EASEMENT
Lisa further argues the easement was void ab initio as Blackburn was
not a signatory to it. This issue highlights how, in multiple deeds between family
members, such transfers can quickly become complicated.
In order to determine whether an easement was created herein, we
first review what an easement is and how one is created. An “easement” is “an
interest that encumbers the land of another.” 25 AM. JUR. 2D Easements and
-6- Licenses § 1 (Nov. 2020 update) (footnote omitted). “A main characteristic of
easements is that they are nonpossessory interests in land, or areas above or below
it, which entitle the easement holder to the right to use the land for a specific,
limited purpose that is not inconsistent with the general use of the property by the
owner.” Id. (emphasis added) (footnotes omitted). Our Court has described
easements and their creation as follows:
Easements are created by express written grant, implication, prescription or estoppel. An express easement is created by a written grant with the formalities of a deed. Loid v. Kell, 844 S.W.2d 428, 429 (Ky. App. 1992). The nature of an easement is distinguishable from a mere license in that it is an incorporeal right - always separate and distinct from the right to occupy and enjoy the land itself. Lyle v. Holman, 238 S.W.2d 157, 159 (Ky. 1951). It is a privilege or an interest in land and invests the owner with “privileges that he cannot be deprived of at the mere will or wish of the proprietor of the servient estate.” Louisville Chair & Furniture Co. v. Otter, 219 Ky. 757, 294 S.W. 483, 485 (1927). In contrast to a restrictive covenant that restricts the use and enjoyment of property, an easement confers a right upon the dominant tenement to enjoy a right to enter the servient tenement. See Scott v. Long Valley Farm Kentucky, Inc., 804 S.W.2d 15, 16 (Ky. App. 1991).
Dukes v. Link, 315 S.W.3d 712, 715 (Ky. App. 2010).
We now turn to the relevant facts pertaining to whether an easement
was created herein. When Jeffrey and Dorothy conveyed their remainder interest
in the small tract of land to Christopher and Joella, they excepted out of the
-7- conveyance a right-of-way, or express easement. At the time, Blackburn still
owned a life estate in the property. A “life estate” is “an estate whose duration is
limited to the life of either the party holding it or some other person; it presupposes
a fee existing elsewhere than in the life tenant.” 31 C.J.S. Estates § 36 (Sept. 2020
update). “A ‘life estate’ grants ownership of a property to another person for the
duration of the other person’s life, or the life of some other person, and grant[s] the
holder the right to possess, control, and enjoy the property during the holder’s
lifetime.” Id. (footnotes omitted). We here note that “[f]ee simple estates, life
estates, and remainders alike vest at the time of their creation although the time of
their enjoyment may be suspended.” Goodloe’s Tr. and Adm’r v. Goodloe, 292
Ky. 494, 166 S.W.2d 836, 839 (1942).
Lisa argues that an express easement could not be created without
consent of the holder of the present possessory and ownership interests:
Blackburn. Consequently, she claims that by operation of law, the easement was
never valid. We disagree.
This particular issue appears to be an issue of first impression in our
Commonwealth. Thus, we must extrapolate from well-established principles
within our jurisdiction and review neighboring jurisdictions for further guidance.
“It is clear that one cannot create an easement in land belonging to
another person.” 3 KY. PRAC. Real Estate Transactions § 11:19 (Oct. 2019 update)
-8- (emphasis added) (footnote omitted). This refers to ownership. Only an “owner
may convey any interest in real property[.]” KRS4 382.010. While Blackburn held
a life estate interest in the property, he was its owner. 31 C.J.S. Estates § 36.
However, Jeffrey and Dorothy, as remaindermen, also had certain present and
future ownership rights, even if their full legal enjoyment could not be realized
until the termination of the life estate. See Goodloe, 166 S.W.2d at 839.
It is well-settled that “[a] remainderman generally can sell or convey
her remainder interest in realty even though the date of full possession and
enjoyment is not due, but a remainderman cannot convey the life tenant’s interest.”
31 C.J.S. Estates § 104 (Sept. 2020 update) (footnotes omitted). Our sister courts
have also recognized, “[a] remainderman does not have the right of possession of
the real estate during the existence of a life tenancy therein[;]” however, “[a]
remainderman may sell and convey or contract in reference to a remainder estate.”
Statler v. Watson, 68 N.W.2d 604, 607 (Neb. 1955) (citations omitted). “[T]he
owner of a vested remainder in lands has a definite and fixed estate therein which
he may convey or encumber.” Oldham v. Noble, 66 N.E.2d 614, 618 (Ind. Ct.
App. 1946). “An estate is vested where it is a determination of right of present
enjoyment or a present right of future enjoyment.” In re Williams’ Will, 24 Misc.
2d 774, 780, 210 N.Y.S.2d 383, 388 (Sur. 1959). “A vested remainderman in
4 Kentucky Revised Statutes.
-9- lands has a present estate or interest therein which has the character of absolute
ownership, Black’s Law Dictionary, 4th Ed., p. 1734, and though the enjoyment of
the interest is postponed to the future, it is, nevertheless, a present interest which
may be sold by conveyance devised by will or levied on and sold under process.”
Oliver v. Irvin, 125 S.E.2d 695, 696 (Ga. Ct. App. 1962) (citations omitted).
It is widely accepted in our Commonwealth that “[a]ny interest in, or
claim to, real estate may be disposed of by deed, or will, in writing.” Hurst v.
Russell, 257 Ky. 78, 77 S.W.2d 355, 356 (1934) (citation omitted). It is also
known in our Commonwealth that remaindermen have the power to mortgage their
interest. Id.
Somewhat similarly, our sister courts have held “a grantor of a term
mineral interest who reserves a future interest may agree by express language in
the conveyance to allow the future interest to be subject to an oil and gas lease
granted by the term mineral interest holder (grantee) during the term of the mineral
interest.” RLM Petroleum Corp. v. Emmerich, 896 P.2d 531, 535 (Okla. 1995)
(emphasis added). Even so, “[n]either a life tenant nor a remainderman can alone
execute a valid mineral lease without the joinder of the other.” Lowrance v.
Whitfield, 752 S.W.2d 129, 134 (Tex. Ct. App. 1988) (citation omitted). While a
remainderman alone cannot execute a valid present production mineral lease
without the joinder of the life estate holder, the remainderman can burden his
-10- future production with a valid mineral lease. “Although such a leasehold interest
may not be enjoined in absence of consent of the other owner, it is not correct to
say that such leases are void in a strict sense. The interests of both a life tenant and
a remainderman are alienable, and the lessee merely stands in the shoes of his
respective lessor.” Hathorn v. Amoco Production Co., 472 So. 2d 403, 408 (Miss.
1985) (citation omitted). “The mere execution of a lease by either the life tenant or
the owner of a future interest does not constitute a wrong to either party. As
between the lessor and the lessee, the lease is valid.” Id. (citation omitted). Said
another way, “although the remainderman may validly lease his interest, that lease
can in no way grant an immediate right to production absent joinder by the life
tenant.” Id.
By extrapolation, it may be inferred from case law within our
Commonwealth and from our sister jurisdictions that remaindermen not only have
the right to transfer their interest in property but also have the right to encumber
their interest. The principle that a remainderman may encumber their interest with
a mortgage or a lease is analogous to their ability to encumber their interest with an
easement.
While Jeffrey and Dorothy owned a remainder interest in the property,
they were free to transfer their interest and were also free to encumber that interest
in the property with an easement without Blackburn’s consent and signature.
-11- However, as a remainder interest, the encumbrance would only become effective
once the life tenancy expired. The deed of correction entered into by Jeffrey,
Dorothy, Christopher, and Joella specifically stated the conveyance was subject to
Blackburn’s life estate interest, which was not extinguished until August 14, 1997.
On that date, Lisa and David were deeded the life estate and remainder interests in
the property, which merged and made the easement enforceable. Accordingly, the
trial court did not err in finding the July 19, 1996, deed created an express
Lisa further alleges the fact the easement was not described in the
August 14, 1997, deed is an absolute defense. However, in Dukes v. Link, 315
S.W.3d at 716, another panel of our Court observed the general rule as found in 25
AM. JUR. 2D Easements and Licenses in Real Property § 93 (2004):
A person who purchases land with knowledge or with actual, constructive, or implied notice that it is burdened with an easement in favor of other property ordinarily takes the estate subject to the easement. On the other hand, a bona fide purchaser of land without knowledge or actual or constructive notice of the existence of an easement in such land generally takes title free from the burden of the easement. This rule is broad enough to include all easements, whether created by implication, prescription, or express grant. However, one who purchases land burdened with an open, visible easement is ordinarily charged with notice that he or she is purchasing a servient estate.
Under the general rule that a purchaser of land subject to the burden of an easement takes the estate
-12- subject to the easement if he or she has notice of its existence at the time of purchase, the proper recordation of the instrument containing the grant of the easement is sufficient notice.
(Emphasis added.) The Dukes Court went on to conclude “that the general rule
applicable to easements in this Commonwealth is that the recording of the
instrument that grants an easement by a common grantor binds a subsequent
purchaser of the tract burdened by the easement regardless of whether it is
included in the purchaser’s deed.” Id. at 717 (emphasis added). Here, the July 19,
1996, deed granting the express easement was properly recorded. Under Dukes,
this constitutes sufficient notice of the express easement to make same valid and
enforceable against Lisa, even without the easement being included in her deed.
ADVERSE POSSESSION
Lisa also contends that if she did not obtain the 1.13 acres depicted by
the Gadbury survey by deed, then she acquired such land by adverse possession.
The elements of adverse possession are “actual possession; open and notorious
possession; exclusive possession; [and] hostile possession” for a period of at least
15 years. Cowherd v. Brooks, 456 S.W.2d 827, 830 (Ky. 1970). All of these
elements must be met for the entirety of the required 15-year period. Failure to
prove even one of the elements is fatal to an adverse possession claim.
Lisa asserts that she pled her claim of adverse possession in her
answer and counterclaim. However, her claim concerning the hostile element of
-13- adverse possession was notably absent from the first allegations contained in her
counterclaim, and only weak evidence was later presented at trial. Lisa testified at
trial that David constructed a storage building on Jeffrey and Dorothy’s property
without their permission. Her testimony was directly contradicted by the
testimony of Dorothy, however, who testified Jeffrey had given David permission
to erect the building on their property. The only undisputed evidence of hostile
possession was Lisa’s parking of cars and construction of fences after David’s
death in 2016, which interfered with use of the easement. These actions were not
undertaken for a period sufficient to satisfy the 15-year requirement to establish
adverse possession. As such, substantial evidence supports the trial court’s
declination to find adverse possession herein as Lisa failed to demonstrate that her
possession of the property was hostile for the required period of time. Lisa’s
failure to present proof of every element required for adverse possession is fatal to
this claim. As a result, the findings of the trial court will remain undisturbed.
EVIDENTIARY RULINGS
The standard of review concerning a trial court’s evidentiary rulings is
for abuse of discretion. Tumey v. Richardson, 437 S.W.2d 201, 205 (Ky. 1969).
“The test for an abuse of discretion is whether the trial judge’s decision was
arbitrary, unreasonable, unfair, or unsupported by sound reasonable principles.”
Penner v. Penner, 411 S.W.3d 775, 779-80 (Ky. App. 2013) (citation omitted).
-14- Lisa alleges that the trial court erroneously admitted into evidence
Plaintiff’s Exhibit 8 and the testimony of Coy Hogg in violation of KRE5 402.
Plaintiff’s Exhibit 8 was an agreement between Lee (Blackburn’s brother), Lee’s
wife, Sophia, Blackburn, and Marie concerning an easement across the property.
Coy testified concerning the creation of the agreement. Lisa claims the trial court
relied on this evidence in its findings and conclusions. While the court stated the
contract was supporting evidence concerning the easement, there is certainly still
substantial evidence supporting the court’s findings apart from the agreement.
Contrary to Lisa’s assertions, any error in admitting the exhibit and testimony was,
therefore, harmless.
CONCLUSION
Therefore, and for the foregoing reasons, the judgment entered by the
Letcher Circuit Court is AFFIRMED.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
Otis Doan, Jr. James A. Hubbard Harlan, Kentucky Isom, Kentucky
5 Kentucky Rules of Evidence.
-15-