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Shields v. University of Louisville Foundation, Inc.

Court of Appeals of Kentucky

June 23, 2017

KENNETH SHIELDS APPELLANT
v.
UNIVERSITY OF LOUISVILLE FOUNDATION, INC. APPELLEE

         APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE SUSAN SCHULTZ GIBSON, JUDGE ACTION NO. 14-CI-004517

          BRIEFS FOR APPELLANT: Jessica D. Smith Matthew A. Dry Louisville, Kentucky.

          BRIEF FOR APPELLEE: T. Morgan Ward, Jr. Brian R. Pollock Louisville, Kentucky.

          BEFORE: ACREE, DIXON, AND TAYLOR, JUDGES.

          OPINION

          TAYLOR, JUDGE.

         Kenneth Shields brings this appeal from an August 3, 2015, order adjudicating the legal status of a roadway. We affirm. Shields and the University of Louisville Foundation, Inc. (Foundation) separately own abutting tracts of real property located in Jefferson County, Kentucky. Before 1942, these tracts of real property were part of a larger 65-acre tract of real property, and the 65-acre tract was jointly owned by two individuals, Anna B. Steedly and George H. Steedly. Anna and George each made a conveyance from the 65-acre tract by deeds dated February 26, 1942.

         First, George and his wife, Elizabeth, conveyed a one-half undivided interest in 22 acres to Anna by deed dated February 26, 1942. This 1942 deed contained the following pertinent language:

There is excepted from the aforesaid conveyance a 15 ft. easement for a roadway[.] The successor in title to the 22-acre tract is the Foundation.

         Second, Anna conveyed a one-half undivided interest in 43 acres to George by deed, likewise, dated February 26, 1942. This 1942 deed contained the following relevant language:

As appurtenant to said tract there is likewise conveyed to said grantee herein a 15 ft. easement for a roadway[.]

         The successor in title to this tract of real property is Shields. The roadway referred to in the above 1942 deeds runs from Old Shepherdsville Road east through the Foundation's real property to the real property currently owned by Shields. The roadway is roughly 15-feet wide and 700-feet long.

         It was this roadway that sparked the present controversy between the parties. Both the Foundation and Shields alleged that the other party impeded use of the roadway, and Shields claimed ownership in fee simple of the roadway. The parties were unable to resolve their differences, and as a result, the Foundation filed a petition for declaratory relief in the Jefferson Circuit Court. Therein, the Foundation asserted that the roadway constituted an easement burdening its real property and that said easement was created by grant as evidenced by the 1942 deed. Shields filed an answer and counterclaim. In the counterclaim Shields, inter alia, alleged that he owned the roadway in fee simple and cited to the 1942 deeds. The Foundation and Shields eventually filed motions for summary judgment upon the legal issues of ownership of the roadway and of the proper interpretation of the 1942 deeds.

         By summary judgment entered August 3, 2015, the circuit court interpreted the 1942 deeds as granting a right-of-way easement in the roadway that burdened the Foundation's property for the benefit of the real property currently owned by Shields:

In describing the easement as "excepted" in the 1942 Deed conveying the 22[-]acre tract of land currently owned by [the Foundation], and as "appurtenant" in the 1942 Deed conveying the 43[-]acre tract of land currently owned by [Shields], the parties show the intent that the 22[-]acre tract is the subservient [sic] estate and the 43[-] acre tract is the dominant estate. By stating that the easement was "appurtenant" in the 1942 Deed conveying the 43[-]acre tract, the parties show the intent that the easement inheres in the land and cannot be terminated by an act of the parties or by operation of law. Therefore, the Court hold that [Shields] does not own the ...

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