Lisa Hogg v. Dorothy Ann Hogg ( 2020 )


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  •                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.
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    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.
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    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
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    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
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    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
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    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
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    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)
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    (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
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    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.
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    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
    easement.
    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
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    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).
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    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.
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