Robert Jessup v. Charles B. Patton ( 2020 )

RENDERED: OCTOBER 16, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2018-CA-0462-MR
ROBERT JESSUP AND
LANCE CHAPMAN APPELLANTS
APPEAL FROM BUTLER CIRCUIT COURT
v. HONORABLE TIMOTHY R. COLEMAN, JUDGE
ACTION NO. 16-CI-00152
CHARLES PATTON AND
ARTIE PATTON APPELLEES
OPINION
REVERSING AND REMANDING
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BEFORE: CALDWELL, JONES, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Robert Jessup and Lance Chapman bring this appeal from a
February 26, 2018, Trial Order and Judgment of the Butler Circuit Court directing
a verdict at a jury trial in favor of Charles B. Patton and Artie Patton (Pattons) as
concerns a prescriptive right-of-way easement asserted by Jessup. For the reasons
stated, we reverse and remand.
We recite only those facts necessary to disposition of this appeal.
Jessup and the Pattons own adjoining tracts of real property in Butler County. A
dispute arose between the parties concerning a roadway that runs across the
Pattons’ real property to Jessup’s real property. Jessup had used the roadway since
purchasing his real property in 1973. Chapman, who had purchased hunting rights
from Jessup on his property, also regularly utilized the roadway to reach Jessup’s
property. The Pattons purchased their property from Glenn and Wanda Cruse on
November 21, 2016. In December 2016, the Pattons informed Jessup that the
roadway was on their land and that use of it by either Jessup or Chapman would be
considered a trespass.
On December 19, 2016, the Pattons filed a complaint in the Butler
Circuit Court against, inter alios, Jessup and Chapman. The Pattons assert that
“Chapman and Jessup have entered upon [their] land . . . and trespassed claiming
that they have a right to cross across [the Pattons’] property.” Complaint at 3.
Jessup and Chapman, pro se, filed answers. Thereafter, the Pattons
served Jessup with a request for admissions per Kentucky Rules of Civil Procedure
(CR) 36.01. The discovery request was not timely responded to by Jessup.
Eventually, Jessup and Chapman retained legal counsel. The court
granted Jessup’s and Chapman’s motions to file amended answers and
counterclaim. In the counterclaim, Jessup alleged, inter alia, that he possessed a
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prescriptive easement over the roadway located upon the Pattons’ real property.
By order entered June 14, 2017, the court ruled that the Pattons’ requests for
admissions were deemed admitted because Jessup failed to timely respond thereto.
The Pattons then filed a motion for summary judgment. Therein, the
Pattons pointed out that Request No. 6 stated, “Admit that you do not have any
easement or legal rights concerning the above described property.” Motion for
Summary Judgment at 3. As the trial court ruled that all requests for admissions
were deemed admitted, “Jessup . . . therefore admitted that he does not have any
easement or legal rights to cross” the roadway located upon the Pattons’ real
property. Motion for Summary Judgment at 3.
The trial court denied the motion for summary judgment. The court
held:
7. Defendant Jessup’s admission above-stated is quite
broad but, nevertheless, is subject to different
interpretations. The statutory and case law
regarding easements in its many forms are
voluminous – applying different legal theories to
various factual scenarios. While the Defendant
Jessup’s admission would preclude any claim of
easement of record or express grant of easement, it
may or may not preclude other claims of easement,
such as a claim of public easement. Accordingly,
while Defendant Jessup’s admission stands, the
statement may be supplemented or explained by
parol evidence[.]
January 24, 2018, Order at 2.
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A jury was impaneled, and the parties introduced evidence. Relevant
to this appeal, Jessup testified that he regularly used the roadway to access his
property since purchasing his property in 1973. At the close of Jessup’s case, the
Pattons moved for a directed verdict upon the issue of a right-of-way easement by
prescription over the roadway. The trial court granted the directed verdict and held
that Jessup did not possess an easement in the roadway located upon the Pattons’
property. In so doing, the trial court reasoned:
2. Easement by Prescription: The Court finds that to
acquire a prescriptive easement the following must be
satisfied[:]
a. hostile or “under a claim of right”[;]
b. actual;
c. exclusive;
d. continuous; and
e. open and notorious.
The Court, having taken a brief recess to consider
the applicable law and the testimony in this case, after
careful consideration, the Court finds that the Defendants
did not establish that they possessed the easement
“hostile,” “exclusive” or “open and notorious” to the
owners of the servient estate. Accordingly, a reasonable
jury could not find in favor of the Defendants on the
claim of easement by prescription.
Furthermore, the Plaintiffs are entitled to directed
verdict based upon the admission of the Defendant
Jessup that he did not possess or have an easement on the
servient property. The Plaintiff’s motion for a directed
verdict on the theory of an easement by [prescription] is
hereby GRANTED.
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February 26, 2018, Trial Order at 2-3. This appeal follows.
Jessup and Chapman contend that the trial court erred by rendering a
directed verdict upon Jessup’s claim of a prescriptive right-of-way easement over
the roadway located upon the Pattons’ property. In particular, Jessup and
Chapman argue that the trial court erred by concluding that Jessup failed to prove
that his use of the roadway was hostile, exclusive, and under a claim of right.
Jessup and Chapman maintain that Jessup’s continuous and uninterrupted use of
the roadway raised a legal presumption that his use of the road was hostile to the
interest of the Pattons.
To begin, a directed verdict in a jury trial should not be rendered
“unless there is a complete absence of proof on a material issue or if no disputed
issues of fact exist upon which reasonable minds could differ.” Jewish Hosp. & St.
Mary’s Healthcare Inc. v. House, 563 S.W.3d 626, 630 (Ky. 2018) (citations
omitted). Upon review, this Court must determine whether considering the
evidence as a whole, “it would not be clearly unreasonable for a jury to find” in
favor of the nonmoving party. Id. at 630. And, “all fair and reasonable inferences
from the evidence [must be viewed] in favor of the” nonmoving party. Id. at 630.
In Kentucky, it is well-established that a right-of-way easement may
be acquired through prescription. Melton v. Cross, 580 S.W.3d 510, 514 (Ky.
2019); Illinois Cent. R.R. Co. v. Roberts, 928 S.W.2d 822, 827 (Ky. App. 1996). A
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right-of-way easement arises where claimant demonstrates actual, hostile, open and
notorious, exclusive, and continuous use of the roadway for fifteen years. Cole v.
Gilvin, 59 S.W.3d 468, 475 (Ky. App. 2001). However, where there exists a
continuous and uninterrupted use of a roadway for at least fifteen years, a
presumption arises that the use of the roadway was hostile, exclusive, and under
claim of right. Id. at 476; Pickel v. Cornett, 147 S.W.2d 381, 382 (Ky. 1941)
(holding that a “private passway may be acquired by prescriptive use although a
right[-]of[-]way is not strictly a subject of continuous, exclusive, and adverse
possession. It is sufficient if the use exercised by the owner of the dominant
tenement is unobstructed, open, peaceable, continuous, and as of right for the
prescribed statutory period.”). This presumption may be rebutted by the
introduction of evidence that the use of the roadway was permissive:
[T]he presumption and burden-shifting rules of proving a
prescriptive easement work like this: First, the plaintiff
has the burden to offer proof of “uninterrupted,
continuous, and unexplained use of the passway by the
claimant . . . for a period of as much as or more than 15
years.” Doing so raises a presumption of a valid
prescriptive easement on the part of the plaintiff. But this
presumption is rebuttable. The defendant then has the
burden to offer proof “that the use of [the passway] by
the [plaintiff] was in fact permissive only.” If the
defendant is able to offer evidence that “the use [of the
passway] at its inception [was] permissive[,]” then the
burden shifts back to the plaintiff to offer proof that
“there has been a distinct and positive assertion of a
claim of right to the easement, and which assertion is
brought home to the owner of the servient estate.”
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Melton, 580 S.W.3d at 515 (footnotes omitted).
During trial, Jessup testified that he continuously and regularly
utilized the roadway over the Pattons’ real property to access his adjoining
property. Jessup testified that he used the roadway to strip mine, farm, cut timber,
and to generally access his real property. Additionally, Jessup explained that he
had used only the roadway to access his property since 1973, when he initially
purchased the property.
In granting the directed verdict, the trial court concluded that Jessup
failed to demonstrate that his use of the roadway was hostile, exclusive, or open
and notorious. However, it is clear that Jessup introduced evidence that his use of
the roadway was continuous and uninterrupted for at least 15 years. As such, a
presumption arose that Jessup’s use of the roadway was also hostile, exclusive, and
under claim of right. See Cole, 59 S.W.3d at 476; Pickel, 147 S.W.2d at 382. This
presumption was not discussed by the trial court in its order granting the Pattons a
directed verdict. Depending upon the evidence, a jury could conclude that a
prescriptive easement existed. Thus, we have no alternative, based on the record
before this Court, but to conclude that the trial court failed to consider the legal
presumption. Accordingly, the trial court erred by granting a directed verdict as to
a prescriptive right-of-way easement based upon the lack of evidence
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demonstrating that Jessup’s use of the roadway was hostile, exclusive, or under a
claim of right.1
We also recognize that the trial court granted the Pattons a directed
verdict alternatively upon the basis of Jessup’s admission. As hereinbefore pointed
out, the Pattons tendered to Jessup the following request for admission:
6. Admit that you do not have any easement or legal
rights concerning the above described property. If you
claim you do have any such easement or legal rights,
provide a copy of all documents that support that right in
any way.
Jessup failed to timely answer the request, and the trial court deemed the request
admitted.
CR 36.02 provides that “[a]ny matter admitted under Rule 36 is
conclusively established unless the court on motion permits withdrawal or
amendment . . . .” The trial court initially viewed Request No. 6 as broad and
subject to varying interpretations. The trial court held that “[w]hile . . . Jessup’s
admission would preclude any claim of easement of record or express grant of
easement, it may or may not preclude other claims of easement . . . . Accordingly,
1
Charles B. Patton and Artie Patton (Pattons) claim that Robert Jessup admitted that his use of
the roadway was permissive during trial. We have reviewed Jessup’s testimony. If Jessup’s
answers are considered in full, we do not believe Jessup admitted same, and it is clear that Jessup
plainly stated that he did not need anyone’s permission to use the roadway. Even if the Pattons
were correct in their view of Jessup’s testimony, a jury issue would have been created on the
factual issue of permissive use in light of the alleged contradictory testimony. Of course, if the
jury had found Jessup’s use of the roadway was permissive by the land owner, there could be no
prescriptive easement over the Pattons’ property.
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while . . . Jessup’s admission stands, the statement may be supplemented or
explained by parol evidence[.]” January 24, 2018, Order at 2.
The Kentucky Supreme Court has instructed that an admission under
CR 36.02 is to be narrowly construed. Lewis v. Kenady, 894 S.W.2d 619, 622 (Ky.
1994). When a matter is admitted, it is conclusively established which “means that
the adverse party is not required to prove the matter admitted and the admitting
party cannot introduce evidence to the contrary.” Berrier v. Bizer, 57 S.W.3d 271,
278 (Ky. 2001). And, the Supreme Court has cautioned that “the determination by
a court that a party may not contradict an admission is strong medicine and should
be sparingly administered.” Lewis, 894 S.W.2d at 622 (quoting Goldsmith v.
Allied Bldg. Components, 833 S.W.2d 378, 380 (Ky. 1992)).
At trial, the court permitted Jessup to introduce evidence that a
prescriptive right-of-way easement existed over the roadway located upon the
Pattons’ property. The trial court also expressed its belief that the request was very
broad and subject to multiple interpretations. Consistent with Supreme Court
precedent, it was incumbent upon the trial court and it is incumbent upon this
Court to narrowly interpret the admission. See Lewis, 894 S.W.2d at 622. In this
instance, we interpret the admission narrowly as precluding any claim of easement
of record or express grant of easement. However, we do not interpret the
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admission so broadly as also precluding the existence of a prescriptive right-of-
way easement.
In sum, we hold that the trial court erred by rendering a directed
verdict upon Jessup’s claim of a prescriptive right-of-way easement in the roadway
located upon the real property of the Pattons. We, thus, reverse and remand for the
trial court to conduct a new trial upon Jessup’s claim of a prescriptive right-of-way
easement.
For the foregoing reasons, the Trial Order and Judgment of the Butler
Circuit Court is reversed and remanded for proceedings consistent with this
Opinion.
ALL CONCUR.
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES:
Matthew J. Baker W. Currie Milliken
Bowling Green, Kentucky Bowling Green, Kentucky
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