United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
C. Reeves, Chief United States District Judge.
Payne Property Management, LLC (“Payne”) has
filed a motion to dismiss the counterclaim asserted by
Defendants Mt. Sterling Water and Sewer Commission
(“MSWS”) and the City of Mt. Sterling, Kentucky.
[Record No. 4] Payne argues that the defendants have failed
to state a claim for a prescriptive easement because they
have not pleaded sufficient facts to support the hostility
element. [Record No. 4] The Court has carefully reviewed the
pleadings and finds that dismissal pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure is not appropriate.
acquired Lot 1 of the Southridge Subdivision, consisting of
approximately 1.6 acres near KY 686, Tilghman Way, and
Skyview Drive in Mt. Sterling, Kentucky, on November 12,
2014. [Record No. 1-4, p. 2, ¶ 6] The property remains
undeveloped. However, in November 2018, the plaintiff was
approached by a third party interested in developing the lot.
Id. at pp. 2-3, ¶¶ 7-9. Payne agreed to
sell the lot to the third party, but in March 2019, prior to
closing, it discovered the existence of an underground sewer
line maintained by MSWS. [Record Nos. 1-4, p. 3, ¶¶
10-11, 1-9, p. 3, ¶ 7] The third party did not purchase
the property due to concerns that the sewer line would impair
the lot’s development. Id. at p. 3,
¶¶ 15-16. Thereafter, on June 20, 2019, Payne filed
this action in the Montgomery Circuit Court. [Record Nos.
1-1, 1-4, p. 4, ¶ 20]
the plaintiff amended its complaint [Record No. 1-4], the
defendants filed an Answer and Counterclaim on August 5,
2019. [Record No. 1-9] The Counterclaim asserts that
“MSWS has acquired a prescriptive easement to use the
underground sewer line located on the Tilghman
Property.” I. at p. 7, ¶ 9. The
defendants state that MSWS installed the sewer line in 2002.
Id. at p. 6, ¶ 4. They claim that throughout
the sixteen years since installation, the lot’s owners
have “had notice of MSWS’s possession of the line
due to the marking of the line by the above-ground manholes
and MSWS’s continuous maintenance of the line.”
Id. at p. 7, ¶ 9. The defendants agree that
Payne acquired the property in 2014 and intended to sell it
in 2019. Id. at p. 6-7, ¶¶ 5-6. Finally,
they note that “Payne Property contacted MSWS in 2019
regarding the sewer line and indicated that the sewer line
was problematic. MSWS provided several options to remedy the
issue which were all unsatisfactory to Payne Property.”
Id. at p. 7, ¶ 7.
defendants removed the case to this Court, asserting that
jurisdiction is appropriate due to the plaintiff’s 5th
and 14th Amendment takings claims as well as claims under 42
U.S.C. §§ 1983 and 1988. [Record No. 1] Payne has
now moved to dismiss the Counterclaim for failure to state a
claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. [Record No. 4]
Rule 8(a)(2) of the Federal rules of Civil Procedure, a
pleading must include “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” F.R.C.P. 8(a)(2). Further, it “must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face’” to survive a Rule 12(b)(6) motion.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A pleading that offers labels and conclusions
or a formulaic recitation of the elements of a cause of
action will not do.” Id. (citing
Twombly, 550 U.S. at 555) (internal quotation marks
omitted). “The plausibility standard is not akin to a
‘probability requirement, ’ but it asks for more
than a sheer possibility” that a party is entitled to
relief based on the facts it has pleaded. Id.
the Counterclaim contends that MSWS has acquired an easement
by prescription. In Kentucky, a party that seeks to
“acquir[e] a private easement by prescription must meet
all the elements of adverse possession.”
Ellington v. Becraft, 534 S.W.3d 785, 796 (Ky. 2017)
(citing Columbia Gas Transmission Corp. v. Consol of
Kentucky, Inc., 15 S.W.3d 727');">15 S.W.3d 727, 730 (Ky. 2000)). This
means that “a prescriptive easement can be acquired by
actual, hostile, open and notorious, exclusive, and
continuous possession of the property for the statutory
period of fifteen years.” Columbia Gas, 15
S.W.3d at 730 (citing Ky. Rev. Stat. § 413.010 for the
fifteen year statutory period).
acts sufficient to establish these elements “depend on
the nature of the interest to be possessed.”
Id. In the context of underground pipe usage, the
Supreme Court of Kentucky has noted: “if the owner of
the land which it occupies throughout its length has notice
of its existence, it could hardly be said that the right to
maintain it was not adverse because the pipe was not visible
or its use apparent.” Riley v. Jones, 174
S.W.2d 530, 532 (Ky. 1943).
hostility element hinges on whether the party claiming the
easement had permission to use the property or the party has
used the property under a “claim of right.”
Permission causes a “prescriptive easement claim [to]
fail for lack of use that is hostile to the
landowner.” Melton v. Cross,
2018-SC-000336-DG, 2019 WL 4072849, at *1 n. 3 (Ky. August
29, 2019) (internal citation omitted). Further, “[i]t
is a well settled rule that use of property by express or
implied permission or license, no matter how long continued,
cannot ripen into an easement by prescription . . . .”
McCoy v. Hoffman, 95 S.W.2d 560');">295 S.W.2d 560, 561 (Ky. 1956).
Still, “[c]ontinuous, uninterrupted use of [property]
without interference for 15 years or more raises a
presumption the use was under a claim of right and the burden
shifts to the opposing landowner to present evidence to rebut
the presumption showing it was merely permissive.”
Cole v. Gilvin, 9 S.W.3d 468');">59 S.W.3d 468, 475 (Ky. Ct. App.
2001) (citing Ward v. Stewart, 435 S.W.2d 73, 75
(Ky. 1968); Finney v. Deweese, 252 S.W.2d 6 (Ky.
1952); Lyle v. Holman, 238 S.W.2d, 157, 160 (Ky.
Counterclaim will survive the present motion if the
defendants have alleged facts that could plausibly give rise
to a prescriptive easement claim. These facts must relate to
all elements of a prescriptive easement, including hostility.
Nevertheless, it appears that the counterclaimants can meet
their initial burden regarding this element by alleging
consistent maintenance and use of the sewer line for the
statutory period without explicitly alleging that its
installation or subsequent use was nonpermissive. Such
allegations shift the burden to the plaintiff to present
evidence that the use was permissive at some point over the
sixteen years in question. See Fed. R. Evid. 302
(“In a civil case, state law governs the effect of a
presumption regarding a claim or defense for which state law
supplies the rule of decision.”).
defendants have met their initial burden because they have
alleged facts that could plausibly give rise to a claim of
prescriptive easement. They need not explicitly state that
the hostility element has been met because the
Twombly/Iqbal standard focuses on the sufficiency of
pleaded facts rather than recitation of a claim’s
elements. Iqbal, 556 U.S. at 678. Further, in this
case, they need not assert that the installation or use of
the line under the lot in question was nonpermissive. They
have alleged that MSWS installed the sewer line in 2002,
serviced it for sixteen years, and put the current and
previous owners of the lot on notice with its maintenance of
the line and above-ground manholes marking it. It is arguable
that the allegation regarding sixteen year of notice to the
lot’s owners speaks to the element of ...