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Thompson v. McCoy

Court of Appeals of Kentucky

August 23, 2019

WILLIE C. THOMPSON APPELLANT
v.
GARY MCCOY; LAWRENCE HICKS; EARL GRIFFITH; CHARLES GRIFFITH, JR.; LISA GRIFFITH; AND MICHAEL GRIFFITH APPELLEES

          APPEAL FROM LAWRENCE CIRCUIT COURT HONORABLE JOHN DAVID PRESTON, JUDGE ACTION NO. 16-CI-00070

          BRIEFS FOR APPELLANT: Nelson T. Sparks Louisa, Kentucky

          BRIEF 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.

          OPINION

          NICKELL, JUDGE

         Willie C. Thompson[1] sued Gary McCoy for damages resulting from repairs McCoy made to Rockhouse Fork on Cherokee Creek and the county road[2] 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.

         FACTS

         Thompson 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.

         McCoy 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 location.

         In late 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.

         On 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.

         Thompson 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.

         In preparation for trial, the judge twice visited the subject property with counsel. The last visit occurred on a Friday before trial commenced on Wednesday.

         At the 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 concrete wall.

         On 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.

         William 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 Thompson's creekbank.

         Barrows 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.

         On 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.

         While 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.

         Barrows 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.

         Doug 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 ...


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