RUTH H. BAKER APPELLANT
DONNA K. HINES AND JAMES L. HINES APPELLEES
APPEAL FROM BOYD CIRCUIT COURT HONORABLE C. DAVID HAGERMAN, JUDGE ACTION NO. 10-CI-01042
BRIEFS FOR APPELLANT: Anna H. Ruth Ashland, Kentucky
BRIEF FOR APPELLEES: Patrick M. Hedrick Ashland, Kentucky
BEFORE: LAMBERT, MOORE, AND TAYLOR, JUDGES.
Ruth H. Baker has appealed from a judgment and an order of the Boyd Circuit Court relating to the use of an easement and requiring her to share in the costs of improvements to a shared driveway. After careful consideration of the record and the parties' arguments, we reverse and remand.
Ruth Baker is the owner of real property located at 3827 Blackburn Avenue in Ashland, Kentucky, also known as Lot No. 48 of the Hyland Addition. She and her now deceased husband have lived at this property since 1962 when they built their home. In 1989, Baker and her husband along with his brother and wife conveyed the lot next door, 3901 Blackburn Avenue, or Lot No. 49, to Kenneth E. and Esther Whitt. In conveying this property, the conveyors retained an easement in the driveway along the western side of Lot No. 49 for the benefit of Lot No. 48. In 2005, Lot No. 49 was conveyed to James L. and Donna K. Hines (the Hineses), the defendants below and Appellees herein. Accordingly, Baker and the Hineses share a common driveway.
The events giving rise to the underlying lawsuit began in September 2010, when the Hineses dug up all of the grass between the westerly side of the driveway and Baker's home and cut down half of a tree at the corner. Mr. Hines informed Baker that he was erecting a fence on this property, which would be approximately twelve inches from her house. Baker filed a verified complaint and moved for a restraining order and temporary injunction in the Boyd Circuit Court a few days later on September 28, 2010. In her complaint, Baker alleged that her property was being destroyed due to the Hineses' intentional trespass on her property, that she was entitled to a judgment quieting title to the westerly edge of the existing driveway,  and that she would suffer immediate and irreparable harm if the court did not issue a temporary restraining order. The court entered a temporary restraining order that same day, restraining the Hineses from interfering with Baker's use of her real property, including the property between the westerly side of the existing property and her home, and from destroying any private property located on the property.
On October 5, 2010, the Hineses filed an answer and counterclaim. In their counterclaim, the Hineses stated that the easement provided ingress and egress over the common driveway on their property to Baker's property. They noted that the deed setting forth the easement did not describe their respective obligations in maintaining and repairing the easement. They alleged that since they became owners of the property, Baker had not spent any time performing maintenance work or paid her proportionate share for maintenance or repair expenses. The Hineses sought a judgment for her proportionate costs that had been expended in the past. In addition, the Hineses sought injunctive relief and an amendment of the deed to state that Baker and her subsequent heirs or assigns of her property would be responsible for half of the costs incurred by the Hineses and their heirs and assigns in maintaining and repairing the easement. The Hineses also sought to quash the temporary restraining order.
In February 2011, the Hineses moved for summary judgment, noting that the facts were not in dispute. In addition to the information above, the Hineses included an affidavit from Mr. Hines detailing his hiring of a surveyor in 2009 to determine the boundary lines for their property, including the easement line. The surveyor placed survey pins on the property to mark the boundary line. In September, 2010, Mr. Hines relied upon the pins to mark the boundary lines -using orange paint - and to dig up the grass. Mr. Hines indicated that none of his work or the proposed placement of the fence on the boundary line would interfere with Baker's use of the driveway for ingress and egress.
In support of their motion, the Hineses argued that Baker did not have unfettered control over the easement and that she did not have the right to stop them from erecting a fence, unless to do so would interfere with her use of the driveway for ingress and egress, which they contended the building of a fence would not do. For this wrongful restraint on their use of the property, the Hineses requested dismissal of Baker's complaint, permission to continue with the construction of the fence, and an award in damages of $1, 500.00. Regarding the issue of maintenance costs for the easement, the Hineses were unable to find a Kentucky case directly on point, but relied upon the majority rule that when the deed is silent, the dominant and servient estates are to jointly share the costs of repair and maintenance of a shared easement. Accordingly, the Hineses requested that the court order Baker, and her heirs, and assigns, to be responsible for 50% of the costs to repair and maintain the easement and that the deeds be reformed to put future owners on notice.
Baker responded to the Hineses' motion and filed her own motion for summary judgment. Baker stated that since 1962, she, her husband, or someone at their direction, had mowed the grass on the easement and that the family used the grass portion of the easement to travel from the front yard to the back yard as well as to access the side of the house for maintenance. She contended that the construction of a fence would interfere with her rightful use of the easement and prevent her from maintaining the side of her house. Baker asserted that she was entitled to a permanent injunction preventing the Hineses from installing a fence or otherwise interfering with or obstructing her use of the entire length of the easement. Regarding maintenance costs, Baker stated that the issue of costs had been addressed between herself and the Hineses' predecessor in title and that the Hineses should have negotiated those costs with the Whitts prior to signing the deed. In reply, the Hineses countered Baker's arguments and continued to argue that the building of a fence along the easement would not interfere with her right to use the easement for ingress and egress.
The circuit court entered an order and judgment on May 27, 2011, detailing the factual and procedural history of the case and specifically stating that the parties had agreed for the court to go to the property to observe how the properties interface. The court held that the Hineses were able to erect a fence that would still permit ingress and egress to Blackburn Avenue from Baker's residence, but ruled that the fence would have to stop far enough from the corner of Baker's house to permit a pedestrian walking over the driveway to have access to her front door and that the fence could not be placed along the side of Baker's house. The court declined to order Baker to pay for any of the maintenance costs, reasoning that the deed did not make any provision for this and that the responsibility should rest with the party upon whose land the driveway was situated. Finally, the court declined the Hineses' request that Baker forfeit the $1, 500.00 bond posted for wrongfully being restrained. The court could not state that the restraint was wrongful due to the exceptions it noted regarding where the fence could be erected.
The Hineses filed a Kentucky Rules of Civil Procedure (CR) 59.05 motion to alter, amend, or vacate the court's order, stating that the court considered evidence not before it and misinterpreted some of the evidence and case law. They disagreed with the limitations the court imposed on their construction of the fence, which they contended went beyond the purpose of the easement to provide ingress and egress from Blackburn Avenue. Furthermore, they argued that the court improperly ruled that the servient estate was entirely responsible for maintenance on the shared driveway and continued to maintain that the dominant estate should be responsible for at least half of the costs. Finally, the Hineses argued that Baker should be required to forfeit the $1, 500.00 bond because the court ruled that they were permitted to construct a fence, meaning that they had been wrongfully enjoined from doing so.
Baker filed a response to the Hineses' motion as well as her own CR 59.05 motion to alter, amend, or vacate. In response to the motion, Baker stated that if a fence were to be permitted, the restrictions put in place by the court should be required. She then stated that she should not be responsible for maintenance costs because she had not resided on the property for several years. She also questioned how any decisions would be made as to maintenance and repair without resorting to litigation. For her own motion, Baker stated that she was entitled to use the full easement, not just the paved driveway, and that the deed language did not limit ingress and egress to car traffic only.
By order entered January 17, 2012, the circuit court ruled on the parties' respective CR 59.05 motions. In favor of the Hineses, the court altered the portion of the judgment mandating that the fence stop three feet short of Baker's house, but required that it had to be at least three feet away from the exterior wall of Baker's house. The court then found it inequitable to require the servient estate to bear the cost of maintaining the easement and ordered that the parties ...