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Kircheimer v. Carrier

Supreme Court of Kentucky

October 23, 2014

Kircheimer
v.
Carrier

Released for Publication December 11, 2014.

ON REVIEW FROM COURT OF APPEALS. CASE NO. 2009-CA-002163-MR. BRECKINRIDGE CIRCUIT COURT NO. 07-CI-00216.

FOR APPELLANTS: Donald Wesley Cottrell, Kenneth Clay Ratley.

FOR APPELLEES: John E. Spainhour, Jr., Rachel Tomara Caudel.

OPINION OF THE COURT BY JUSTICE ABRAMSON. All sitting. All concur.

Page 225

ABRAMSON JUSTICE

Subdivision developers Regina and Carl Wayne Carrier appealed from an order of

Page 226

the Breckinridge Circuit Court declaring a subdivision roadway a private road and enjoining the Carriers from allowing homeowners on nearby property to install driveways and culverts which would open onto that road. The Court of Appeals reversed the trial court, concluding that the disputed road, Sandy Beach Lane, was a public roadway that was dedicated by estoppel involving plat. Having concluded the Court of Appeals erred in applying that doctrine to the facts presented, we reverse the Court of Appeals and reinstate the order of the Breckinridge Circuit Court.

RELEVANT FACTS

This appeal concerns a dispute over a roadway situated within Sandy Beach Subdivision in rural Breckinridge County. Developers Friedell Hinton, Barbara Hinton, and Charles L. Martin purchased the land that would become Sandy Beach Subdivision from James F. O'Donoghue in 1989. Subsequently, a one-third interest in the land was assigned to Donald Martin. Thereafter, Friedell Hinton constructed Sandy Beach Lane on the undeveloped land. The developers recorded the plat for Sandy Beach Subdivision with the Breckinridge County Clerk's Office on August 8, 1990. The subdivision plat contained a note which stated: " Developer retains a 1.0 ft. strip of land between existing road and the James F. (Buddy) & Danny O'Donoghue property." The remaining O'Donoghue property consisted of a large parcel of land adjacent to Sandy Beach Subdivision.[1] A Deed of Declaration of Restrictions (" deed of restrictions" ) for Sandy Beach Subdivision, recorded shortly thereafter on September 10, 1990, restated the above-quoted sentence regarding the developer's retention of the one-foot strip and contained the following maintenance provision:

In the event that a government body assumes responsibility for the maintenance of said road and utilities, the assessment shall be terminated, and all property owners shall grant such government body a forty (40) foot road easement, however, said easement shall not infringe upon the 1.0 foot strip of land between the roadway and the property of James F. O'Donoghue, which strip is reserved for Developer.

Deed of Declaration of Restrictions, ¶ 17.

Within one year, eleven lots in Sandy Beach Subdivision were sold. On October 6, 1991, the original developers assigned their interest to Sandy Beach Inc. Approximately eleven years later, in March 2002, Sandy Beach Inc. conveyed its interest in the remaining lots to Carl Wayne Carrier and Regina S. Carrier. The Carriers filed an amended deed of restrictions which contained a provision similar to paragraph 17, with the exception of the new language " without written permission from the developer or his assignee" replacing the above-quoted final clause " which strip is reserved by Developer." In addition to the remaining lots in Sandy Beach Subdivision, the Carriers acquired a large parcel of adjacent land and began to develop two new subdivisions named " Taylor's Landing" and " Sandy Beach II." [2] The one-foot strip of land referenced in the Sandy Beach Subdivision plat and its deed of restrictions physically separates Taylor's Landing and Sandy Beach II from Sandy Beach Lane. The Carriers then granted

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certain lot owners in the new subdivisions, Taylor's Landing and Sandy Beach II, the authority to build driveways over the one-foot strip of land in order to access Sandy Beach Lane.

On October 8, 2007, several lot owners[3] in Sandy Beach Subdivision (the " Sandy Beach homeowners" ) filed a petition for declaration of rights with the Breckinridge Circuit Court demanding a declaration that Sandy Beach Lane was a private roadway, and further seeking to enjoin the Carriers or any other lot owners in Taylor's Landing or Sandy Beach II from installing driveways or culverts on to Sandy Beach Lane. After taking evidence and hearing testimony from developers, lot owners, surveyors, and other witnesses, the trial court concluded that Sandy Beach Lane was a private road for the sole use and benefit of the lot owners in Sandy Beach Subdivision. The trial court also held ...


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