WILLIE C. THOMPSON APPELLANT
GARY MCCOY; LAWRENCE HICKS; EARL GRIFFITH; CHARLES GRIFFITH, JR.; LISA GRIFFITH; AND MICHAEL GRIFFITH APPELLEES
FROM LAWRENCE CIRCUIT COURT HONORABLE JOHN DAVID PRESTON,
JUDGE ACTION NO. 16-CI-00070
FOR APPELLANT: Nelson T. Sparks Louisa, Kentucky
FOR APPELLEES GARY MCCOY, LAWRENCE HICKS, EARL GRIFFITH,
CHARLES GRIFFITH, JR., AND LISA GRIFFITH: Don A. Bailey
Louisa, Kentucky BRIEF FOR APPELLEE, MICHAEL GRIFFITH:
Michael Griffith, pro se Orient, Ohio
BEFORE: ACREE, NICKELL, AND L. THOMPSON, JUDGES.
C. Thompson sued Gary McCoy for damages resulting from
repairs McCoy made to Rockhouse Fork on Cherokee Creek and
the county road running beside it. Thompson alleges the
repairs caused his land to flood and erode. On realizing
surrounding landowners may have assisted McCoy, Thompson
sought and was granted leave to amend the complaint to add
indispensable parties. The suit resolved Thompson's claim
for damages from McCoy and decided the boundary between the
Thompson and McCoy farms. In a bench trial, the Lawrence
Circuit Court ruled in favor of all Appellees on causation
and damages and set the boundary as reflected in a survey
offered by McCoy. A counterclaim filed by McCoy for
reimbursement of half the money expended to maintain the
county road and to require Thompson to remove rocks he had
placed in the creek was denied. Thompson appeals. After
thorough review, we affirm.
bought a 199-acre farm on Rockhouse Fork in 1979 where he
camps, farms and gardens. McCoy bought an adjacent farm north
and upstream of Thompson in 1999. A county road, the sole
means of access to both farms, runs along Rockhouse Fork.
Thompson claims McCoy has moved both the creek and the road.
testified when he bought his farm, the county road was
impassable. A portion of the road was missing, forcing
drivers to use the creek bed to reach his property. McCoy
repaired the road by placing fill dirt atop the impassable
area. He said he changed neither the road nor the creek's
1999 or 2000, McCoy began constructing a concrete retaining
wall at the creek's edge. On completion of two sections
of wall, Thompson saw no impact on his land and said nothing.
There was a slight amount of erosion, but it was tolerable.
Thompson acknowledged McCoy had done much to improve his farm
since buying it. Thompson admitted McCoy patched washed out
areas. Thompson also agreed McCoy had a right to maintain and
repair the road.
April 3, 2015, 4.09 inches of rain fell in Lawrence County in
a brief period. The defense termed this an
"extraordinary flooding event" after which McCoy
built a third section of wall to preserve the county road and
access to his farm. According to Thompson, this third section
of wall is causing his farm to flood and erode.
drove to his farm April 4, 2015, the day after the flood, to
inspect his property. The water had receded and while he saw
some debris, there was no property damage and he had no
trouble crossing the creek in his truck. He testified he did
not believe the flood washed out the road. He said he has
spent $0 to maintain the road and likes driving in the creek.
He admitted the road benefits him when he needs it and he
placed $3, 200 worth of blocks in the creek to curb erosion.
preparation for trial, the judge twice visited the subject
property with counsel. The last visit occurred on a Friday
before trial commenced on Wednesday.
one-day bench trial, Thompson testified first. He said it was
not until McCoy had the third section of wall installed-after
the April 3, 2015, flood-that he noticed a problem. Thompson
claims before building the third section of concrete wall,
McCoy dredged the creek, widened the road into the creek, and
relocated the creek channel. Thompson did not believe the
2015 flood washed out the road and maintained there was
nothing to repair but McCoy built the third section of
cross-examination, Thompson acknowledged when he drove past
the Hicks' place in 1999 he had to drive in the creek bed
and the creek did not flow in its channel. Thompson agreed
McCoy had returned the creek to its original channel.
Barrows, a mining engineer and land surveyor, testified next.
He conducted a drainage study of the creek. He said erosion
was visible on Thompson's property and concrete appeared
to have been added to the creek to control erosion. He agreed
the water appeared to flow against the concrete and away from
said the stream had been dredged and was now a trapezoidal
shape with increased water flow. While the channel was not
necessarily deeper, the detention time had been minimized by
removal of any obstacle hindering water flow.
cross-examination, Barrows testified preventing roadway
erosion is reasonable. Additionally, if he owned McCoy's
property he would have done the same thing-he would have
built a concrete retaining wall.
unfamiliar with the area, Barrows prepared a boundary survey
at Thompson's request. Thompson's 1999 deed was
incomplete due to missing distances and bearings causing
closure issues. Barrows indicated there was a 600 to 700-foot
error in a 150-acre tract which was not good enough to
determine the creek's original location. Barrows relied
on Thompson's recollection of the creek in relation to
the concrete barrier. Thompson told Barrows the road used to
be in the creek.
testified he stumbled upon a ten to fifteen-foot length of
rusted fence buried in the ground as he came down a hill
toward Rockhouse Fork. The fence segment did not reach the
creek although the deed called for the line to reach the
middle of the creek. Barrows projected the fence line to the
creek, adding a call based on Thompson telling him where the
line should be.
Hall, a contractor, testified next. He said he would repair
Thompson's creekbank at a cost of $21, 900. On
cross-examination he revealed the quoted price included $2,
700 for concrete to create a new crossing for Thompson.
Because the crossing was unrelated ...