APPEAL AND CROSS-APPEAL FROM GALLATIN CIRCUIT COURT HONORABLE JAMES R. SCHRAND II, JUDGE ACTION NO. 07-CI-00214
BRIEFS FOR APPELLANT/ CROSS-APPELLEE: Ruth H. Baxter
BRIEF FOR APPELLEES/ CROSS-APPELLANTS: Todd V. McMurtry, Kevin F. Hoskins
BEFORE: LAMBERT, STUMBO, AND VANMETER, JUDGES.
Donald Sproul, the appellant and cross-appellee, and Kentucky Properties Holding, LLC, the appellee and cross-appellant, appeal from a judgment of the Gallatin Circuit Court ruling on the status of a passway located in Gallatin County, Kentucky. The passway, called Church Lane, traverses property owned by Kentucky Properties Holding, LLC, successor in interest to Michael and Mary Jo Hornsby,  and provides access to property owned by Sproul. The trial court found the passway to be a private passway, required the Hornsbys to provide Sproul reasonable access to his property, and dismissed the Hornsbys' claim for damages. For the following reasons, we reverse and remand.
In 2006, the Hornsbys purchased a parcel of land situated between the Ohio River and Paint Lick Creek. Sproul owns a parcel wedged in the fork between the river and the creek. Prior to this action, Sproul accessed his property from Kentucky Highway 1992 via Church Lane. Upon leaving the state highway at the Paint Lick Baptist Church, Church Lane traverses the Hornsby property in a westerly direction towards the Ohio River. Near the River, the Lane turns in a northerly direction and runs parallel to the River. At the northerly end of the Hornsby property, the Lane then passes through a 4.5 acre tract, which is located between the Sproul property and the Hornsby property. This 4.5 acre tract is divided into four parcels. Sproul's right to cross any of these properties is not at issue because he has a deeded right of way. The owners of those parcels, the Hinkles, Stambaughs, Hudepohls and Days, were originally parties to this action, but they agreed to use Church Lane as the Hornsbys wish, and they were dismissed.
Soon after the Hornsbys' purchase of their farm, and upon encountering problems with trespassers, the Hornsbys erected a gate on Church Lane near the intersection with Highway 1992. The Hornsbys provided Sproul with the gate code, but requested that the gate be locked after entry and exit.Eventually, the Hornsbys constructed another passway, designated Carolina Road, to provide access to Church Lane from Jackson's Landing Road. The record is unclear as to when Carolina Road was constructed. In June 2011, the Hornsbys filed an amended complaint, along the lines of the original complaint, centering on issues surrounding the use of Church Lane from the Church gate. The amended complaint does not refer to Carolina Road or Jackson's Landing Road. As a result of the new passway, however, Sproul's property could be accessed by turning from Jackson's Landing Road onto Carolina Road, entering through a gate onto the Hornsby property, continuing until Carolina Road intersects with Church Lane, and then turning onto Church Lane. The Hornsbys requested that Sproul use the Jackson's Landing entrance instead of the Highway 1992 entrance.
The Hornsbys allege that Sproul and his invitees intentionally left the gate unlocked and, in some cases, propped it open. As a result, individuals trespassed onto their property and, among many other things, dumped waste, stole building supplies, and stole artifacts from a Native American mound. The Hornsbys filed a complaint and a motion for a permanent injunction, sought compensatory damages, and asked the court to enter a declaratory judgment regarding what constitutes a "safe use" of Church Lane. The Hornsbys also sought a temporary injunction and restraining order. The trial court issued a temporary injunction and required Sproul to close and lock the gates upon entry and exit until the ultimate issue was resolved.
The trial court conducted a bench trial in February, 2012. The Hornsbys asked the court to deem Church Lane a private passway and to declare that they have the right to alter the road so long as they continue to provide reasonable access to the Sproul property. Sproul asserted that Church Lane is either a county road or a public road and argued that the Hornsbys had no right to build gates, alter the size of the road, or move the road.
The trial court made the following significant findings of fact concerning the historical designations and uses of Church Lane. Prior to the Hornsbys' erection of the Church gate, no "No Trespassing" signs were located at the entrance, and Church Lane did not have any gates or barriers that would prevent someone from driving up and down the Lane, which was wide enough to accommodate farm equipment with a sixteen-foot width. No deeded easement through the Hornsbys' property refers to Church Lane,  although a written record exists of a passway through the 4.5 acre parcels that separate the Hornsbys' and Sproul's properties. A 1974 deed for one of the parcels comprising a portion of the 4.5 acre tract mentions access to the property through "the passway from Kentucky Highway 1992, at the Paint Lick Baptist Church." Subsequent deeds to owners within the 4.5 acre tract also included "the right and privileges of the passway from the Kentucky Highway 1992 at the Paint Lick Baptist Church." The court found that Church Lane was not the county road depicted in an 1883 Gallatin County Atlas, and that Gallatin County never formally adopted Church Lane as a county road, and is not on the county's current list of maintained roads. The court noted historic farming use by Hornsbys' predecessors in title, including as a dairy through the mid-1970's, and that two tenant houses were located on the farm. Significantly, the trial court found that Gallatin County
graded and provided gravel for the portion of Church Lane to the intersection with Carolina Road for a school bus to be able to pick up school children through the early 1990's. Gallatin County also performed culvert repair . . . in the late 1970s or early 1980s on the section between the church parking lot and the Church Lane/Carolina Road intersection.
The trial court, however, found "that the public has not used and Gallatin County has not maintained any portion of Church Lane for at least fifteen (15) years prior to the Hornsby[s'] purchase of their property in 2005."
Based on its findings of fact, the trial court concluded: (1) Church Lane was never formally adopted as a county road; (2) the portion of Church Lane from Highway 1992 to the intersection with Carolina Road was formally maintained by the county and sufficiently used by the public to establish a public road rather than a private passway, citing Sarver v. Allen County, 582 S.W.2d 40 (Ky. 1979) and Watson v. Crittenden County Fiscal Court, 771 S.W.2d 47 (Ky. App. 1989); and (3) Church Lane continuing from Carolina Road to the properties beyond is a private passway and use of this portion of the Lane by Sproul and other property owners has been permissive, citing Cole v. Gilvin, 59 S.W.3d 468 (Ky. App. 2001). The trial court further concluded that since county maintenance and public use have discontinued and the provisions of KRS 178.116(1) do not apply, the entirety of Church Lane has reverted to a private passway. The court declined to award the Hornsbys damages, ...