RENDERED: MARCH 15, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0259-MR
MICHAEL DARREN BOYD APPELLANT
APPEAL FROM CUMBERLAND CIRCUIT COURT v. HONORABLE DAVID WILLIAMS, JUDGE ACTION NO. 19-CI-00053
MARK SCHWENKE AND GLENDA SCHWENKE APPELLEES
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE: LAMBERT, MCNEILL, AND TAYLOR, JUDGES.
MCNEILL, JUDGE: This appeal concerns a dispute between Michael Darren
Boyd (“Boyd”) and Mark and Glenda Schwenke (“Schwenke”) over a roadway.
Following a jury trial, the Cumberland Circuit Court entered a judgment which
held the Schwenkes had a prescriptive easement over the roadway, enjoined Boyd
from obstructing the roadway, and awarded the Schwenkes $5,000 in damages. Boyd appeals the permanent injunction and damage award.1 For the reasons
below, we affirm in part, reverse in part, and remand.
Boyd and the Schwenkes own neighboring real estate in Cumberland
County, Kentucky. In 2019, the Schwenkes purchased an 8-acre plot of land for
Mark Schwenke’s (“Mark”) brother to live on, the only access to which was an
unimproved road. Shortly after the Schwenkes bought the property, Boyd blocked
the roadway with a shipping container, preventing their access. The Schwenkes
brought an action in Cumberland Circuit Court, seeking a permanent injunction,
recognition of their right to use the road, and damages. Boyd eventually removed
the container, but by that time the Schwenkes had been unable to access their
property for one and a half years.
A jury trial was held on the easement and damages claims. Mark
testified he bought the property for his brother, Luke, to live on. But when Boyd
blocked the road, that was delayed. The road became overgrown during that time
because they could not use or maintain it. Luke currently lives on the property in
his recreational vehicle, and Mark has built a small cabin that he uses weekly for
Bible studies. Luke confirmed he had lived on the property for eighteen months.
He maintains the property and pays rent, although not a set amount.
1 Boyd does not appeal the easement determination.
-2- Following the evidence, the jury found in favor of the Schwenkes and
awarded $5,000 in damages. In its judgment, in addition to the damage award, the
court issued a permanent injunction, ordering that Boyd “shall not obstruct the
passage of anyone along said road . . . [or] place any obstacle on, over or in the
road.” Boyd moved for judgment notwithstanding the verdict (JNOV), arguing the
damage award was not supported by substantial evidence. He also moved to alter,
amend, or vacate the damage award, and the permanent injunction because it was
not supported by the jury’s verdict, or within its purview since it is an equitable
remedy. The court denied the motion. This appeal followed.
“[T]he standard of review regarding the amount of damages awarded
is whether the trial court abused its discretion when it denied [appellant]’s motion
for JNOV.” Banker v. University of Louisville Athletic Association, Inc., 466
S.W.3d 456, 463 (Ky. 2015). Further, “[t]he amount of damages is a dispute left to
the sound discretion of the jury . . . . If the verdict bears any reasonable
relationship to the evidence of loss suffered, it is the duty of the trial court and this
Court not to disturb the jury’s assessment of damages.” Hazelwood v. Beauchamp,
766 S.W.2d 439, 440 (Ky. App. 1989). Boyd argues the jury’s damage award was
not supported by substantial evidence. We agree.
“The measure of damages for obstruction of a passway is the
diminution in value of the use of the property during the time the obstruction
-3- continued, and rental value is a relevant factor in determining the amount of
damages.” Wells v. Sanor, 151 S.W.3d 819, 825 (Ky. App. 2004) (internal
quotation marks and citation omitted). Here, there was no evidence or testimony
concerning the rental value of the property during the 1.5 years the Schwenkes
were denied access. Mark testified he bought the property for his brother to live on
and that that was delayed when Boyd blocked the roadway. Luke currently lives
on the property and pays some money towards rent, but the amount was not
specified.
“[D]amages must always be proven with reasonable certainty.”
Curry v. Bennett, 301 S.W.3d 502, 506 (Ky. App. 2009), as modified (May 1,
2009) (citation omitted). “[T]here must be introduced in evidence some tangible
figure from which the value of the use reasonably can be deduced, else the court
and jury are left to draw entirely on their experience aliunde, or upon naked
speculation.” Adams Const. Co. v. Bentley, 335 S.W.2d 912, 914 (Ky. 1960). This
tangible figure could be “the rental value of the dwelling in question or . . . the
rental value of other comparable property.” Id. In this case, the best evidence of
damages would likely be what Luke would have paid Mark over the 1.5 years the
roadway was blocked. Other evidence would also suffice, such as the rental value
of comparable property. But there must be some “tangible figure from which the
-4- value of the use reasonably can be deduced[.]” Id. Therefore, we must reverse for
a new trial on damages.
Boyd also argues the trial court erred in granting injunctive relief
because the jury made no such finding and has no authority to award injunctive
relief. Essentially, he argues the court should not have included equitable relief in
its judgment following a jury trial because that issue was not properly before the
court. We disagree.
“[I]njunctive relief is basically addressed to the sound discretion of
the trial court. Unless a trial court has abused that discretion, this Court has no
power to set aside the order below.” Maupin v. Stansbury, 575 S.W.2d 695, 697-
98 (Ky. App. 1978) (citations omitted). An abuse of that discretion occurs only
when the “decision was arbitrary, unreasonable, unfair, or unsupported by sound
legal principles.” Commonwealth ex rel. Conway v. Thompson, 300 S.W.3d 152,
162 (Ky. 2009).
The Schwenkes complaint sought a determination of their easement
rights to the roadway, injunctive relief, and damages. The easement and damages
questions were tried by jury. At that time, the issue of a permanent injunction was
still pending before the court. Once the jury determined the Schwenkes had an
easement, the court could rule on the permanent injunction. See CR2 65.01 (“A
2 Kentucky Rules of Civil Procedure.
-5- party may obtain injunctive relief in the circuit court by . . . permanent injunction
in a final judgment.”). We find no error in the trial court’s procedure of including
the injunction in its final judgment following the jury trial.
We further find the trial court did not abuse its discretion in issuing
the injunction. The final judgment found the Schwenkes have a prescriptive
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RENDERED: MARCH 15, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0259-MR
MICHAEL DARREN BOYD APPELLANT
APPEAL FROM CUMBERLAND CIRCUIT COURT v. HONORABLE DAVID WILLIAMS, JUDGE ACTION NO. 19-CI-00053
MARK SCHWENKE AND GLENDA SCHWENKE APPELLEES
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE: LAMBERT, MCNEILL, AND TAYLOR, JUDGES.
MCNEILL, JUDGE: This appeal concerns a dispute between Michael Darren
Boyd (“Boyd”) and Mark and Glenda Schwenke (“Schwenke”) over a roadway.
Following a jury trial, the Cumberland Circuit Court entered a judgment which
held the Schwenkes had a prescriptive easement over the roadway, enjoined Boyd
from obstructing the roadway, and awarded the Schwenkes $5,000 in damages. Boyd appeals the permanent injunction and damage award.1 For the reasons
below, we affirm in part, reverse in part, and remand.
Boyd and the Schwenkes own neighboring real estate in Cumberland
County, Kentucky. In 2019, the Schwenkes purchased an 8-acre plot of land for
Mark Schwenke’s (“Mark”) brother to live on, the only access to which was an
unimproved road. Shortly after the Schwenkes bought the property, Boyd blocked
the roadway with a shipping container, preventing their access. The Schwenkes
brought an action in Cumberland Circuit Court, seeking a permanent injunction,
recognition of their right to use the road, and damages. Boyd eventually removed
the container, but by that time the Schwenkes had been unable to access their
property for one and a half years.
A jury trial was held on the easement and damages claims. Mark
testified he bought the property for his brother, Luke, to live on. But when Boyd
blocked the road, that was delayed. The road became overgrown during that time
because they could not use or maintain it. Luke currently lives on the property in
his recreational vehicle, and Mark has built a small cabin that he uses weekly for
Bible studies. Luke confirmed he had lived on the property for eighteen months.
He maintains the property and pays rent, although not a set amount.
1 Boyd does not appeal the easement determination.
-2- Following the evidence, the jury found in favor of the Schwenkes and
awarded $5,000 in damages. In its judgment, in addition to the damage award, the
court issued a permanent injunction, ordering that Boyd “shall not obstruct the
passage of anyone along said road . . . [or] place any obstacle on, over or in the
road.” Boyd moved for judgment notwithstanding the verdict (JNOV), arguing the
damage award was not supported by substantial evidence. He also moved to alter,
amend, or vacate the damage award, and the permanent injunction because it was
not supported by the jury’s verdict, or within its purview since it is an equitable
remedy. The court denied the motion. This appeal followed.
“[T]he standard of review regarding the amount of damages awarded
is whether the trial court abused its discretion when it denied [appellant]’s motion
for JNOV.” Banker v. University of Louisville Athletic Association, Inc., 466
S.W.3d 456, 463 (Ky. 2015). Further, “[t]he amount of damages is a dispute left to
the sound discretion of the jury . . . . If the verdict bears any reasonable
relationship to the evidence of loss suffered, it is the duty of the trial court and this
Court not to disturb the jury’s assessment of damages.” Hazelwood v. Beauchamp,
766 S.W.2d 439, 440 (Ky. App. 1989). Boyd argues the jury’s damage award was
not supported by substantial evidence. We agree.
“The measure of damages for obstruction of a passway is the
diminution in value of the use of the property during the time the obstruction
-3- continued, and rental value is a relevant factor in determining the amount of
damages.” Wells v. Sanor, 151 S.W.3d 819, 825 (Ky. App. 2004) (internal
quotation marks and citation omitted). Here, there was no evidence or testimony
concerning the rental value of the property during the 1.5 years the Schwenkes
were denied access. Mark testified he bought the property for his brother to live on
and that that was delayed when Boyd blocked the roadway. Luke currently lives
on the property and pays some money towards rent, but the amount was not
specified.
“[D]amages must always be proven with reasonable certainty.”
Curry v. Bennett, 301 S.W.3d 502, 506 (Ky. App. 2009), as modified (May 1,
2009) (citation omitted). “[T]here must be introduced in evidence some tangible
figure from which the value of the use reasonably can be deduced, else the court
and jury are left to draw entirely on their experience aliunde, or upon naked
speculation.” Adams Const. Co. v. Bentley, 335 S.W.2d 912, 914 (Ky. 1960). This
tangible figure could be “the rental value of the dwelling in question or . . . the
rental value of other comparable property.” Id. In this case, the best evidence of
damages would likely be what Luke would have paid Mark over the 1.5 years the
roadway was blocked. Other evidence would also suffice, such as the rental value
of comparable property. But there must be some “tangible figure from which the
-4- value of the use reasonably can be deduced[.]” Id. Therefore, we must reverse for
a new trial on damages.
Boyd also argues the trial court erred in granting injunctive relief
because the jury made no such finding and has no authority to award injunctive
relief. Essentially, he argues the court should not have included equitable relief in
its judgment following a jury trial because that issue was not properly before the
court. We disagree.
“[I]njunctive relief is basically addressed to the sound discretion of
the trial court. Unless a trial court has abused that discretion, this Court has no
power to set aside the order below.” Maupin v. Stansbury, 575 S.W.2d 695, 697-
98 (Ky. App. 1978) (citations omitted). An abuse of that discretion occurs only
when the “decision was arbitrary, unreasonable, unfair, or unsupported by sound
legal principles.” Commonwealth ex rel. Conway v. Thompson, 300 S.W.3d 152,
162 (Ky. 2009).
The Schwenkes complaint sought a determination of their easement
rights to the roadway, injunctive relief, and damages. The easement and damages
questions were tried by jury. At that time, the issue of a permanent injunction was
still pending before the court. Once the jury determined the Schwenkes had an
easement, the court could rule on the permanent injunction. See CR2 65.01 (“A
2 Kentucky Rules of Civil Procedure.
-5- party may obtain injunctive relief in the circuit court by . . . permanent injunction
in a final judgment.”). We find no error in the trial court’s procedure of including
the injunction in its final judgment following the jury trial.
We further find the trial court did not abuse its discretion in issuing
the injunction. The final judgment found the Schwenkes have a prescriptive
easement over the roadway and permanently enjoined Boyd from “obstruct[ing]
the passage of anyone along said road . . . [or] plac[ing] any obstacle on, over or in
the road.” Boyd has not appealed the easement determination, thus there is no
question the Schwenkes have the right to use the roadway free from Boyd’s
interference. Instead, Boyd appears to take issue with the broad language of the
court’s injunction. He argues he “has a right to protect his land and can erect a
gate or other[wise] restrict access provided he does not unreasonably interfere with
[the Schwenkes’] access[,]” citing the general rule that a servient “owner cannot
unreasonably interfere with the rights of the holder of the easement.”
Commonwealth, Dep’t of Fish & Wildlife Resources v. Garner, 896 S.W.2d 10, 14
(Ky. 1995) (citations omitted).
The problem with Boyd’s argument, however, is that there was no
evidence Boyd owned the roadway. Jake Staton, the licensed surveyor who
surveyed Boyd’s property, testified the roadway was the boundary line to Boyd’s
-6- property. Thus, Boyd would have no right to restrict anyone’s access to the
roadway because he does not own it. Therefore, we find no error.
Based upon the foregoing, the judgment of the Cumberland Circuit
Court is affirmed as to the permanent injunction and reversed as to the damage
award with directions that a new trial be granted on the sole question of damages.
As noted above, “[t]he measure of damages for obstruction of a passway is the
diminution in value of the use of the property during the time the obstruction
continued, and rental value is a relevant factor in determining the amount of
damages.” Wells, 151 S.W.3d at 825 (internal quotation marks and citation
omitted). Any damage award must be supported by “some tangible figure from
which the value of the use reasonably can be deduced[.]” Adams Const. Co., 335
S.W.2d at 914.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
Winter R. Huff Gary A. Little Monticello, Kentucky Albany, Kentucky
-7-