Ricky Foxall and Ruth Ann Foxall v. Kein Rogers and Cindy Shumate

Bowling Green, Kentucky real property lawyers represented the parties in a easement dispute.

Prior to 1998, Evelyn Smith ("Mrs. Smith") owned property in Warren County, Kentucky, which had frontage on Girkin Road and Anna Sandhill Road. In December 1998, Appellants purchased a tract of Mrs. Smith's parcel. In November 2020, Appellees purchased an adjoining parcel of about 32 acres with frontage also on Girkin Road. Mrs. Smith had previously owned the parcel purchased by Appellees, though she was not the immediate predecessor title holder.



Prior to Appellants' purchase of their parcel, a driveway existed on the parcel which would later be purchased by Appellees. Appellants and Mrs. Smith agreed that if Appellants purchased their parcel, they could use Mrs. Smith's driveway to access a barn on Appellants' parcel. This agreement was incorporated in the purchase contract, which stated, "[b]uyers will have right of way to use driveway to get to property. If damage to driveway is done by buyer, buyers will repair it as good as it was." The deed later granted to Appellants was silent as to the driveway.



In the years that followed, Appellants used the driveway on Mrs. Smith's parcel regularly to access their barn. According to the record, Appellants maintained the driveway and spread gravel on it between 15 and 18 times.



After Appellees' purchase of their parcel in 2020, Appellants continued to use the driveway on Appellees' parcel. In late 2021, Appellees installed an unlocked gate between the street and the driveway, with Appellants continuing to use the driveway. Apparently upset that Appellants would not allow Appellees to use Appellants' pasture for Appellees' horses, Appellees placed a lock on the gate which barred Appellants access to the driveway.



Thereafter, Appellants filed a complaint and first amended complaint in Warren Circuit Court against Appellees asserting entitlement to a prescriptive easement on the driveway; easement by necessity; easement by dedication; and/or, easement by estoppel. They also sought to amend the deed to reflect the easement. The matter proceeded in Warren Circuit Court, resulting in the court ruling in favor of Appellees on all claims except the claim for a prescriptive easement.



Appellees then filed a motion for summary judgment on Appellants' sole remaining claim for a prescriptive easement. In support of the motion, Appellees argued that since Appellants' use of the driveway was at all times permissive, Appellants could never prove that their usage was adverse and hostile to Appellees if the matter proceeded to trial.



After considering the memoranda and arguments of counsel, the Warren Circuit Court rendered an order on January 7, 2024, granting Appellees' motion for summary judgment on Appellants' claim for a prescriptive easement. The basis for the court's order was its conclusion that Appellants' use of the driveway has at all times been permissive. Being permissive, the court reasoned that Appellants could not prove every element of a prescriptive easement. The court noted that while Appellants argued that they did not need anyone's permission to use the driveway based on the language in the real estate purchase contract, that language was not binding on Appellees and Appellees' deed was silent as to any driveway easement. The court went on to find that a prescriptive easement did not vest in 2013 as argued by Appellants, as the statutory period never began to run based on Appellants' permissive rather than hostile usage of the driveway. It granted Appellees' motion for summary judgment and this appeal followed.



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In support of this argument, Appellants direct our attention to Columbia Gas Transmission Corp. v. Consol of Kentucky, Inc., 15 S.W.3d 727, 730 (Ky. 2000), which sets out the elements of a prescriptive easement. Per Columbia Gas, in order to demonstrate entitlement to a prescriptive easement, one must provide evidence of acquisition of the easement by 1) actual use; 2) use that is considered hostile to the property owner; 3) open and notorious use; 4) exclusive use; and, 5) continuous use for the statutory period of 15 years. Id. Appellants acknowledge that permissive use of the driveway would be fatal to their claim for a prescriptive easement. They argue, however, that they never needed permission to use the driveway because that right was granted to them by Mrs. Smith in the original real estate purchase agreement.

The Warren Circuit Court properly determined that Appellants' use of the driveway on Appellees' parcel was permissive. As such, they could not prevail on their claim for a prescriptive easement if the matter proceeded to trial. The circuit court correctly concluded that there were no genuine issues as to any material fact, and that Appellees were entitled to a judgment as a matter of law. Scifres, supra. Accordingly, we find no error and affirm the order of the Warren Circuit Court granting Appellees' renewed motion for summary judgment.