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Vorherr v. Coldiron

Court of Appeals of Kentucky

May 26, 2017

DAVID VORHERR AND DORA VORHERR APPELLANTS
v.
BRETT COLDIRON; LANA LONG; MARK STUTLER; NANCY L. BIEL, AS TRUSTEE UNDER SELF DECLARATION OF TRUST; NANCY L. BIEL; RAYMOND C. BIEL; JAMES FRALEY; AND XIAOQUN LIAO APPELLEES

         APPEAL FROM KENTON CIRCUIT COURT HONORABLE PATRICIA SUMME, JUDGE ACTION NO. 11-CI-03013

          BRIEF FOR APPELLANT: Michael Scott McIntyre Robert Thomas Razzano Cincinnati, Ohio

          BRIEF FOR APPELLEE: Paul J. Vesper Covington, Kentucky

          BEFORE: COMBS, DIXON AND NICKELL, JUDGES.

          OPINION

          DIXON, JUDGE.

         Appellants, David and Dora Vorherr, appeal from an order of the Kenton Circuit Court granting summary judgment in favor of Appellants, Brett Coldiron and Lana Long, Nancy L. Biel, individually and as Trustee under Self Declaration of Trust dated July 31, 2000, Raymond Biel, James Fraley, Xiaoqun Liao, and Mark Stutler(collectively "Coldiron").

         This case involves an easement dispute between neighbors, primarily the Vorherrs and Coldiron. Because a large part of the controversy herein stems from the confusing procedural posture of the case, a lengthy recitation of the facts and procedural history is warranted. In March 1986, Don and Joanne Lewin, who owned property in the Devou Park area of Northern Kentucky that is now owned by the parties herein, subdivided their land. Lots 1 and 2, located at 1103 Ridgeway Court, were originally conveyed by the Lewins to Michael Higgins in 1986 by a deed that contained an easement providing a "non-exclusive easement to use a private roadway abutting the rear line of said lot for means of ingress and egress." Eventually, Lots 1 and 2 were conveyed in 1999 to the Vorherrs by a deed that contained the same easement language. Coldiron resides at property known as 1105 River Hills Drive which is located directly beneath (topographically) and to the southeast of the Vorherr property, abutting the Vorherrs' rear property lines. This property was conveyed to Coldiron by the Lewins in 1996.

         The property line between the Vorherr and Coldiron properties is along a steep drop-off covered with trees and brush. At the bottom, the land flattens out and a paved roadway has been constructed along the same pathway upon which a dirt or gravel road existed at the time of the Lewin subdivision of the property. This roadway, once referred to as Lewin Lane but now known as River Hills Drive, provides access from Ridgeway Court to the properties owned by Coldiron, the Fraleys and the Biels. From 1999 until 2006, the Vorherrs periodically used the roadway to walk from their backyard to Ridgeway Court, as well as to maintain their utilities that run along on over their rear property line. Although a gate was erected where River Hills Drive intersects with Ridgeway Court, the Vorherrs claimed they had been provided with the access code. However, sometime in 2006 the Vorherrs misplaced the code and when they requested it from Coldiron in order to have repairs made on their sewer lines, Coldiron refused them access.

         Apparently numerous discussions were had among the parties and, when a compromise could not be reached, the Vorherrs filed a complaint on November 23, 2011, in the Kenton Circuit Court against Coldiron seeking a declaration of their rights to use River Hill Drive pursuant to the access easement contained in their deed. The Vorherrs also sought injunctive relief and monetary damages for obstruction of passway. All of the other neighboring landowners/Appellees were made defendants in an amended complaint filed on September 12, 2012. Coldirons thereafter filed counterclaims against the Vorherrs and cross-claims against Stutler.

         In March 2013, the Vorherrs and Coldiron filed cross motions for summary judgment. As evidence in support of their motion, the Vorherrs attached written opinion letters solicited by Coldiron from two separate Kentucky real estate experts, Fred Summe and William Deupree, that both concluded the Vorherrs had a non-exclusive access easement over River Hills Drive. Nevertheless, on September 23, 2013, the trial court issued an opinion and order denying the Vorherrs' motion but granting summary judgment in favor of Coldiron. Therein, the trial court found:

         The Vorherrs' deed . . . contains the following language:

BEING ALL OF LOTS ONE (1) AND TWO (2), DONALD LEWIN'S RE-SUBDIVISION OF KENTON HILLS, SECTION I, AS SHOWN ON ORIGINAL PLAT NO. 1084 OF THE KENTON COUNTY CLERK'S RECORDS AT CONVINGTON, KENTUCKY, LOTS ONE (1) AND TWO (2) FRONT 100 FEET EACH ON RIDGEWAY COURT, THE EAST LINE OF LOT 1 IS 118.
SUBJECT TO EASMENTS, COVENANTS, CONDITIONS AND RESTRICTIONS OF RECORD . . . .
BEING THE SAME PREMISES CONVEYED TO THE GRANTORS HERE BY DEED RECORDED IN DEED BOOK 1211, PAGE 304 OF THE KENTON COUNTY CLERKS AT COVINGTON, KENTUCKY.
ALSO, NON-EXCLUSIVE EASEMENT TO USE A PRIVATE ROADWAY ABUTTING THE REAR LINE OF SAID LOT FOR MEANS OF INGRESS AND EGRESS . . .
Note the property description does not close, the end of paragraph one appears to be missing; at the end of that section of the 1986 deed from Lewin to Higgins, book 914, page 107, the first grant of these lots following the Lewin re-subdivision, it reads, "the east line of Lot 1 is 118.61 feet, the west line of Lot 2 is 113.08 feet." The easement in that Higgins deed is noted, substantially identical to the Vorherr deed as, "ALSO, a non-exclusive easement to use a private roadway abutting the rear line of said lot for means of ingress and egress." The evidence in the record shows no reference to an easement for the Vorherr property in the chain of title to the Coldiron property.
Plaintiffs acknowledge . . . that the survey of the property reveals that the "Roadway runs near and parallel to the stated Easement, virtually touching the stated Easement at one point, but the Roadway is technically a few feet to several yards to the south of the stated Easement." Thus the roadway does not "touch and concern" plaintiff's property.
The description of the easement from its beginning in the Higgins deed has been a bad call. The court finds a latent ambiguity therein as, although it is not clear from the face of the deeds, when examining the plats or visiting the site it becomes clear that no roadway has ever abutted the rear lines of Lots 1 and 2 . . . . An easement may be created by an express written grant consistent with the formalities of a deed. . . . One of the primary requirements for a valid deed is an accurate description of the land by which the property can be precisely located, and where there is an ambiguity a specific call will prevail over a general description. . . . Therefore the specific measurements from the existing dedicated road, Ridgeway Court, control over a general reference to use of a roadway, River Hill Drive, and any easement would have been the use of the steep grade which actually abuts the property of plaintiffs; however, they concede that no roadway has ever existed there so the purported easement as described is meaningless. Plaintiffs do not have a valid, enforceable easement in the actual roadway. (Citations omitted).

         The trial court additionally found that the Vorherrs did not acquire an easement by prescription or estoppel because Coldiron had continuously, open, and notoriously asserted ownership over the property for a period of fifteen years and any use of the property by the Vorherrs was permissive. Interestingly, the trial court made no mention of the two expert opinions to the contrary. Further, although the trial court did not reference the Vorherrs' claims against the other defendants, nor Coldiron's ...


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