REVIEW FROM COURT OF APPEALS CASE NO. 2014-CA-001214 BATH
CIRCUIT COURT NO. 10-CI-90020
COUNSEL FOR APPELLANTS: Stephen Edward Neal White, Peck,
COUNSEL FOR APPELLEE, HARLAN RANDALL BECRAFT: Leah Nell
COUNSEL FOR APPELLEE, BATH COUNTY, KENTUCKY: Kimberly S H
COUNSEL FOR APPELLEE, UNKNOWN HEIRS OF EWELL GORDON BAILEY:
Julie Diane S Williamson Hughes Letcher Williamson PSC.
COUNSEL FOR APPELLEE, DONNA MICHELE BECRAFT: Donna Michele
Becraft, Pro Se.
COUNSEL FOR APPELLEE, HENRY LEROY ANDERSON: Henry Leroy
Anderson, Pro Se.
COUNSEL FOR APPELLEE, BONNIE B. ANDERSON: Bonnie B. Anderson,
COUNSEL FOR APPELLEE, BRITNEY BAILEY: Britney Bailey, Pro Se.
COUNSEL FOR APPELLEE, DUSTIN BAILEY: Dustin Bailey, Pro Se.
COUNSEL FOR APPELLEE, ELEANOR W. BAILEY: Eleanor W. Bailey,
COUNSEL FOR APPELLEE, KAREN BAILEY HART: Karen Bailey Hart,
COUNSEL FOR APPELLEE, DANNY HART: Danny Hart, Pro Se.
COUNSEL FOR APPELLEE, ADDISON BAILEY: Addison Bailey, Pro Se.
COUNSEL FOR APPELLEE, LESLIE SPARKS: Leslie Sparks, Pro Se.
Ellington, filed a complaint and petition for declaration of
rights against Defendant, Becraft, and other parties in Bath
County regarding a passway known as Smokey Hollow Road.
Ellington asked that this road be recognized as a county
road, public passway, or easement. The case was tried before
the Court, without a jury, and the Court entered judgment
against the Defendant, finding that Smokey Hollow Road was a
county road, a public passway, and that Ellington had
acquired an easement by prescription. The Court of Appeals
reversed, holding that Ellington had failed to meet his
burden in proving the existence of any county road, public
passway; or easement. Ellington then sought review from this
Court. For the reasons discussed herein, we affirm in part,
although on different grounds, and reverse in part the
opinion of the Court of Appeals.
Ellington obtained full interest to his property on what is
known as Smokey Hollow Road in Bath County in 1995. The
property was initially purchased by his uncle in 1954, passed
to his aunt and mother by will, and then passed partially to
him by will after the passing of his mother and then he
obtained full interest in the property by will after his
aunt's death in 1995. As a child, he visited the property
while his uncle owned it. He did not start visiting again
after his uncle's death until he obtained full ownership
in 1995. He visited the property one to two times a year
until 2004. In 2004, Harlan Becraft purchased his property on
Smokey Hollow Road and erected a gate across the road,
limiting Ellington's access to his property. Ellington
testified that, before Becraft erected the gate, he had never
been denied access across the road by any other previous
brought suit against Becraft in 2010 alleging that Becraft
had no right to limit Ellington's access to this road.
Ellington stated that Smokey Hollow Road was, in fact, a
county road; in the alternative, Ellington alleged that
Smokey Hollow Road was either a public road or passway, or
that he had acquired an easement of some kind over the
trial court entered findings of fact and conclusions of law
finding that the road was a county road, public road, and
easement by prescription. The Court of Appeals reversed on
all findings, holding that Ellington had failed to meet his
burden in proving Smokey Hollow Road was a county road,
public road, or any kind of easement. Ellington then moved
this Court for discretionary review, which we granted.
STANDARD OF REVIEW
Kentucky Rule of Civil Procedure (CR) 52.01, ''[i]n
all actions tried upon the facts without a jury ..., the
court shall find the facts specifically and state separately
its conclusions of law thereon and render an appropriate
judgment[.]" Upon review, "[f]indings of fact
shall not be set aside unless clearly erroneous, and due
regard shall be given to the opportunity of the trial court
to judge the credibility of the witnesses." CR 52.01.
first determination upon appeal, therefore, is to determine
whether the trial court's findings of fact are clearly
erroneous. See id. A trial court's findings are
not clearly erroneous if they are supported by substantial
evidence. Moore v. Asente, 110 S.W.3d 336, 354 (Ky.
2003). "'[Substantial evidence' is
'[e]vidence that a reasonable mind would accept as
adequate to support a conclusion' and evidence that, when
'taken alone or in the light of all the evidence, ... has
sufficient probative value to induce conviction in the minds
of reasonable men."' Id. (quoting
Black's Law Dictionary 580 (7th ed. 1999) and citing to
Kentucky State Racing Comm'n v. Fuller, 481
S.W.2d 298, 308 (Ky. 1972) and Blankenship v. Lloyd
Blankenship Coal Co., 463 S.W.2d 62 (Ky. 1970)).
trial judge's findings are supported by substantial
evidence, "then the appellate court's role is
confined to determining whether those facts support the trial
judge's legal conclusion." Barber v.
Bradley, 505 S.W.3d 749, 754 (Ky. 2016) (quoting
Commonwealth v. Deloney, 20 S.W.3d 471, 473-74 (Ky.
2000)). In this review of legal conclusions, we conduct a
de novo review. Barber, 505 S.W.3d at 754
(citing Sawyers v. Better, 384 S.W.3d 107, 110 (Ky.
county road, pursuant to Kentucky Revised Statute (KRS)
178.010 is a "public road which ha[s] been formally
accepted by the fiscal court of the county as a part of the
county road system, or private roads, streets, or highways
which have been acquired by the county [by gift for public
purposes] ..." "Since ... 1914, a formal order of
the fiscal court has been required to establish a county
road." Kentucky Props. Holding LLC v. Sproul,
507 S.W.3d 563, 569 (Ky. 2016) (citing Sarver v. Allen
Cnty., 582 S.W.2d 40, 41 (Ky. 1979) (citing Rose v.
Nolen, 179 S.W. 229, 230 (Ky. 1915))).
can be deemed public without "automatically" being
considered a "county road." Sproul, 507
S.W.3d a 569. In other words, a county road is a statutory
creation, rather than an equitable one such as a public road
or easement. This distinction is for the simple policy that
"[a] county should not be held responsible for
maintenance of a road which happens to become public through
a process over which it has no control." Cory v.
Pulaski Cnty. Fiscal Court, 420 S.W.3d 500, 508 (Ky.
App. 2013) (citing Sarver, 582 S.W.2d at 41).
parties stipulated that the first one-tenth of a mile on
Smokey Hollow Road, extending from Oakley Pebble Road, was a
county road. However, the parties disputed that the road past
that point was ever a county road as officially adopted by
Bath County. The trial court relied upon testimony from
witnesses regarding the use of the road; county maintenance
of the road; and public and historical perception of the road
to make its determination that Smokey Hollow ...