Scott Haas v. Dennis Scott Graham

• Court: Court of Appeals of Kentucky
• Decided: October 24, 2025
• Docket: 2024-CA-1407
• Status: Unpublished

Opinion

RENDERED: OCTOBER 24, 2025; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2024-CA-1407-MR

SCOTT HAAS AND SHERI HAAS APPELLANTS

APPEAL FROM WOLFE CIRCUIT COURT v. HONORABLE LISA HAYDEN WHISMAN, JUDGE ACTION NO. 23-CI-00089

DENNIS SCOTT GRAHAM AND KIMBERLY GRAHAM APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: COMBS, A. JONES, AND KAREM, JUDGES.

JONES, A., JUDGE: Scott and Sheri Haas appeal the findings of fact and

conclusions of law entered by the Wolfe Circuit Court following a bench trial in

this dispute over a common roadway. After careful review, we affirm the circuit

court. I. FACTUAL AND PROCEDURAL BACKGROUND

The Haases own four tracts of land in Wolfe County, which they

purchased in 2022. At least one tract is adjacent to the tract owned by Dennis and

Kimberly Graham, who purchased their property in 2005. All of the tracts were

previously owned by the family of James S. Brown. The Brown property was

divided into 14 separate tracts in 1975. To that end, the Haases own tracts 7, 8, 9,

and 11, and the Grahams own tract 10. When the land was divided in 1975, a

surveyed plat was recorded in the Wolfe County Clerk’s Office. The deeds for the

tracts owned by the Haases and Grahams refer only to the plat and corresponding

tract numbers for their legal descriptions and sources of title. At issue is a 30-foot-

wide right-of-way depicted in the plat that runs from Kentucky Highway 191 to the

14 separate tracts.

According to the record before us, when the Grahams purchased their

property in 2005, the property now owned by the Haases was owned by the Bush

family. Dennis Graham testified that the Bushes had erected a gate on the roadway

that was open when he bought the property, but soon after was kept closed and

locked. However, Dennis testified the Bushes provided keys to him, his son Kevin

Graham, and nephew Andrew Graham. Dennis testified that, before the Haases

bought their land, Dennis and his family used the roadway several times a year to

-2- access their property for hunting, fence maintenance, and care of their livestock,

and that the roadway was always accessible.

In 2022, the Bushes sold their land to the Haases. After the purchase,

the gate remained closed and locked, but Dennis was no longer able to unlock it

with the keys he obtained from the Bushes. The Haases never provided a key to

Dennis, and he could no longer access his tract via the roadway. Dennis admitted

to putting up his own chains and locks on the gate twice, only to have them

removed by the Haases. The Grahams filed the underlying lawsuit seeking a

declaration of rights to their use of the roadway and an injunction forcing the

Haases to remove any and all obstacles that prevent their use of the roadway. The

Haases filed an answer, but did not make a claim of ownership to the roadway via

adverse possession or under any other legal theory therein.

A bench trial was held. Dennis testified about his use of the roadway

since 2005, and that he was never denied use or access and had a key to the gate.

He stated he believed he received the key from Mike or Glen Bush, but could not

recall when he received it. Kevin and Andrew testified to their use of the roadway

to access the Graham property for hunting, fence maintenance, and cattle. Kevin

stated he believed he used the roadway a couple of times per month and had a key

to access the gate up until 2022. Andrew also stated that he had a key, but it

stopped working when the Haases purchased the neighboring tract.

-3- The Haases called Larry and Dorsie Bush, two of the prior owners of

the Haas property, to testify. Both stated the gate had been up since 1978, and, to

their knowledge, no keys had been given to anyone outside of the Bush family.

Both stated they never saw the Grahams use or travel through the gate. Scott Haas

testified the gate was there when he viewed the property before purchasing and it

was his belief that he owned the property upon which the roadway passed, despite

the plat.

The circuit court found the roadway was reserved to serve all 14 tracts

and is not owned by the Haases. Although part of it appeared to be a county road

in the plat, no conclusive evidence was presented regarding where the county road

stopped or how often it was maintained. The circuit court found that, because the

roadway was still used regularly, even if infrequently, by the Grahams, the Haases’

argument that the Grahams abandoned use of the roadway was unavailing. The

circuit court also ordered the Haases to remove any fences and/or gates. The

Haases filed a motion to alter, amend, or vacate based on what they argued were

mistakes in the circuit court’s findings of fact. The circuit court denied the motion.

This appeal followed.

II. STANDARD OF REVIEW

The Haases make numerous arguments on appeal that center primarily

on what they claim are the circuit court’s erroneous findings of fact. “Appellate

-4- review of a trial court’s factual findings is governed by the clearly erroneous

standard; factual determinations supported by substantial evidence will not be

disturbed.” Legg v. Commonwealth, 500 S.W.3d 837, 839 (Ky. App. 2016)

(citation omitted). They also make several arguments related to the circuit court’s

conclusions of law. “The standard of review for conclusions of law is de novo.”

Commonwealth v. Bennett, 553 S.W.3d 268, 271 (Ky. App. 2018) (citations

omitted).

III. ANALYSIS

The Haases contend the circuit court erred by 1) finding the roadway

was not abandoned by the Grahams; 2) finding that blockage of the roadway began

to occur in 2022 after the Haases purchased their property; 3) finding Dennis

Graham had knowledge of use of the roadway to access his property prior to his

purchase in 2005; 4) finding the Grahams utilized the roadway several times per

year; and 5) ignoring the testimony of Larry and Dorsie Bush that the gate had

been locked since 1978 and no keys had been given to the Grahams.

The Haases also argue the circuit court erred in its conclusions of law

because the Grahams’ nonuse coupled with exclusion from the roadway dating

back to 1978 amounted to abandonment. They also assert the circuit court erred by

ordering removal of the gate, chain, and lock.

-5- Finally, the Haases request that we strike a portion of the Grahams’

brief that includes responses to requests for admissions that were not admitted into

evidence.

We begin by addressing the Haases’ arguments regarding the circuit

court’s findings of fact, which center around conflicting testimony of witnesses.

Witnesses for each side gave radically different time frames for how long the gate

had been locked and who had keys. Dennis Graham testified the gate was there

when he purchased his property in 2005, but it was never locked. He stated he

could not remember when the Bushes started locking it, but when they did, he

obtained keys from either Mike or Glen Bush and the Graham family had

unfettered access to the roadway from 2005 until 2022. Testimony by Dennis,

Kevin, and Andrew Graham was that they each used the roadway several times per

year. Dennis also testified he believed his property was accessed for mining and

timber via the roadway prior to 2005. On the other hand, Larry and Dorsie Bush

testified the gate had been in place and locked since 1978, and the Bushes never

gave keys to anyone, including the Grahams or their predecessors in title. Both

Larry and Dorsie testified they had never seen any Graham family members using

the roadway.

In the end, the circuit court’s findings of fact were based simply on

whose testimony it believed. “[D]ue regard shall be given to the opportunity of the

-6- trial court to judge the credibility of the witnesses because judging the credibility

of witnesses and weighing evidence are tasks within the exclusive province of the

trial court.” Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (internal quotation

marks and footnotes omitted). The circuit court clearly believed the Grahams and

their witnesses regarding use of and access to the roadway. The circuit court also

considered the plat entered into evidence that showed the roadway serving each of

the 14 tracts. We cannot say the circuit court clearly erred in its findings of fact.

Moreover, even if the circuit court believed some or all of the

testimony offered by the Haases and their witnesses, in the order denying the

Haases’ motion to alter, amend, or vacate, the circuit court also found that:

[w]hat was of most importance to the Court in making its findings was that the 30-foot right-of-way was never deeded out when the original property owner divided up the land. The right-of-way was clearly reserved on the recorded plat. In each of the parties’ deeds, there are no descriptions, just references to tracts. Kentucky Courts have held that dedication by plat is a common method of reserving property for public use. [See] Cassell v. Reeves, 265 S.W.2d 801, 802 (Ky. 1964). When a plat is recorded and subsequent deeds refer to the plat, the plat becomes part of the deeds. Id. The calls for each of the tracts in issue in the above-styled case fall outside of the dedicated right of way.

In other words, the roadway was never the Haases’—or Bushes’ for

that matter—to lock and/or obstruct, but it only became an issue in 2022 when the

Grahams no longer had keys to the gate.

-7- The Haases’ remaining arguments focus on what they allege are errors

in the circuit court’s conclusions of law. In doing so, they are essentially making a

claim for adverse possession. The Grahams argued the Haases failed to plead

adverse possession and the circuit court recognized the failure in its order denying

the Haases’ motion to alter, amend, or vacate. However, we note that “[a] party

may prove title by adverse possession under a general allegation of ownership,

although adverse possession has not been specifically pleaded.” Bryant v. Bullock,

218 S.W.2d 381, 382 (Ky. 1949). Nevertheless, the Haases failed to develop their

adverse possession argument to this Court, and it must fail.

The Haases assert that the Grahams abandoned any claim to the

roadway through nonuse and, coupled with acts of dominion (e.g., installation of a

locked gate) by the Bushes and then Haases, the nonuse amounts to abandonment

(citing Schade v. Simpson, 173 S.W.2d 801 (Ky. 1943)). The Haases’ argument is

deficient in two ways: First, they fail to articulate how they satisfied the elements

of adverse possession, which are: “1) possession must be hostile and under a claim

of right, 2) it must be actual, 3) it must be exclusive, 4) it must be continuous, and

5) it must be open and notorious.” Appalachian Regional Healthcare, Inc. v. Royal

Crown Bottling Co., Inc., 824 S.W.2d 878, 880 (Ky. 1992). Second, the circuit

court specifically found that Graham had not abandoned use of the roadway until

he was forced to do so in 2022. As previously stated, the circuit court clearly

-8- believed testimony from the Grahams concerning use of the roadway and access to

the gate via keys from 2005-2022. The Haases’ adverse possession argument to

this Court is simply a repackaging of their assertion that the circuit court erred in

its findings of fact.

Finally, the Haases request we strike the fourth item included in the

appendix of the Grahams’ brief, which is a copy of the Haases’ responses to

requests for admissions. Kentucky Rule of Appellate Procedure (“RAP”)

32(E)(1)(b) provides, in relevant part only, that “[t]he appendix may contain papers

or exhibits in the appellate record to which ready reference may be considered by

the appellant as helpful to the appellate court.” The responses included in the

appendix are found on pages 39-40 of the certified record before us. Therefore, we

decline to strike that portion of the Grahams’ brief. We do note that the

information the Grahams attempted to draw to our attention in the responses to the

requests for admissions was elicited upon cross-examination of Scott Haas at the

bench trial, making the admissions redundant at best.

IV. CONCLUSION

For the foregoing reasons, the judgment of the Wolfe Circuit Court is

affirmed.

-9- ALL CONCUR.

BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES:

John T. Aubrey Ira S. Kilburn Mariah J. Aubrey Salt Lick, Kentucky Manchester, Kentucky Rebecca Graham McCoy Mt. Sterling, Kentucky

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