RENDERED: FEBRUARY 16, 2024; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2023-CA-0335-MR

MICHAEL F. HAYDEN APPELLANT 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE MITCH PERRY, JUDGE

ACTION NO. 21-CI-003542

JOHN INGRAM GILDERBLOOM 

AND ARN HOLDINGS, LLC APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: COMBS, GOODWINE, AND LAMBERT, JUDGES.

COMBS, JUDGE: This case involves a land dispute between neighbors. Michael 

F. Hayden appeals the judgment of the Jefferson Circuit Court entered on crossmotions for summary judgment. After our review, we affirm. 

Since at least the mid-1890s, parcels of real property facing Highland 

Avenue in Louisville have benefitted from permanent easements appurtenant. 

These easements, expressly created by deed, invest the property owners with the 
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non-exclusive right to use a private alleyway adjoining the rear portions of their 

properties. By virtue of the terms of the express easements, the owners of these 

parcels are said to enjoy dominant estates. The record does not reveal the owner of 

the alleyway property; i.e., the burdened or servient estate. 

In June 2021, John Ingram (Gilderbloom) owner of the property at 

1405 Highland Avenue in Louisville, filed a complaint in Jefferson Circuit Court. 

ARN Holdings, LLC was later added as a plaintiff to the proceedings. We refer to 

the plaintiffs (now Appellees) collectively as “Gilderbloom.” 

 In his complaint, Gilderbloom alleged that Michael F. Hayden, owner 

of property at 1407 Highland Avenue (Gilderbloom’s next-door neighbor to the 

east), wrongfully blocked Gilderbloom’s access to the alley by constructing a fence 

across it. He alleged that the fence prevents vehicular access to his back yard. As 

a result, he cannot build a useful garage or receive deliveries at the rear of his 

property. In addition, he can no longer easily move trash bins for garbage 

collection at a separate adjoining alley to the east of Hayden. 

Gilderbloom’s recorded deed describes his property, in 

part, as follows: 

[R]unning thence Northeastwardly along the Northwest 

side of Highland Avenue 33 feet 4 inches and extending 

back Northwestwardly on the same width throughout 

between lines parallel with the Northeast line of Edward 

Street 128 feet, and as appurtenant to said lot the right to 

use and enjoy the 18 foot alleyway adjoining the Eastern 
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line of said lot connecting with a 10 foot alley giving 

outlet to the North. 

(Emphasis added.) This or similar language is contained in Gilderbloom’s chain of 

title from 1895 forward. 

The deeds in Hayden’s chain of title also incorporate metes-andbounds descriptions of his property. This deed, for example, recorded in 1894, 

describes 1407 Highland Avenue as follows: 

Beginning in the northwardly line of Highland Avenue 

sixty six feet and eight inches eastwardly of the 

northwardly corner of Highland Avenue and Edward 

Street thence eastwardly with the northwardly line of 

Highland Avenue thirty three feet and four inches thence 

at right angles to Highland Avenue northwardly one 

hundred and ten feet to a private alley eighteen (18) feet 

wide and thirty three feet four inches long which alley 

has an outlet by the way of a private alley ten feet wide 

running northwardly to an alley running parallel to 

Highland Avenue said alleys are hereby dedicated to the 

use of second party or any tenant she may have or any 

party she may sell to thence westwardly with said 

eighteen foot alley thirty three feet and four inches, 

thence southwardly one hundred and ten feet to point of 

beginning. 

(Emphasis added.) The same description is contained in the next deed transferring 

ownership of the property. However, the next eleven deeds, while using a similar

metes-and-bounds description of the property to be transferred, omit reference to 

the easements. The deed from Mark and Elaine Rose to Barney A. Sutton 

(Hayden’s immediate predecessor in title) simply describes the northern boundary 
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of the property (110 feet from Highland Avenue) as adjoining the south line of the 

alley for a distance of 33 feet 4 inches. 

Following a period of discovery, Hayden filed a motion for summary 

judgment. Hayden contended that access from the 1405 property to the disputed 

alleyway adjoining the rear of his property had been “totally blocked and unused 

for over twenty (20) years.” He argued that any right of the owners of 1405 

Highland Avenue to cross the disputed alleyway had been lost through adverse 

possession and that this fact was reflected in a recorded “deed of consolidation,” 

dated January 24, 2001. The “deed of consolidation” now described the property 

at 1407 Highland Avenue, in part, as follows: 

[T]hence at right angles to Highland Avenue, 

Northwardly 128 feet to the North line of a private 

alley; thence Eastwardly along the North line of said 

alley, 33 feet 4 inches; thence Southwardly 128 feet; 

thence Westwardly with the Northern line of Highland 

Avenue 33 feet 4 inches to the point of beginning.

BEING a consolidation of property acquired by Barney 

A. Sutton, by Deed dated May 12, 1998, of record in 

Deed Book 7039, Page 762, in the Office of the Clerk of 

the County Court of Jefferson County, Kentucky, and 

property adversely possessed by Barney A. Sutton 

and his predecessors in title.

(Emphases added.) Hayden explained that “[a]fter Barney A. Sutton acquired the 

former private alley by adverse possession and recorded [the “consolidation deed”] 

in 2001, [Hayden] has owned and protected it by a back border fence.” Hayden 
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asserted that “[f]or the last twenty (20) years, [he, Hayden] has had actual 

possession, hostile control, exclusive use and open and notorious possession of the 

northwest eighteen (18) feet of 1407 Highland Avenue . . . .” Hayden argued that 

“[w]hen Gilderbloom purchased 1405 Highland Avenue [in June 2016], he was 

fully aware and had actual knowledge that the former strip was completely and 

totally closed, both visually and from the public record in the Deed of 

Consolidation[.]” Hayden contended that there were no factual disputes and that 

he was entitled to judgment as a matter of law because “Gilderbloom fails to show 

that he has any rights or cause for the real estate owned by Hayden.” He attached 

dozens of photographs, a boundary survey, copies of deeds, and his sworn 

affidavit. 

In response, Gilderbloom filed an affidavit in which he attested, in 

part, as follows:

6. When I purchased the property at 1405 Highland 

Ave., my rear yard was enclosed with a wood fence. 

A portion of that fence was across the 18-foot private 

alley in a north-south direction. However, that 

portion had a large, unlocked gate which allowed both 

parties access to the private alley at the rear of 1405 

and 1407 Highland Ave.

7. From the time I purchased 1405 Highland Ave. in 

2016 until the spring and summer of 2019 when Mr. 

Hayden informed me I no longer had private alley 

access and until he constructed a sold wooden fence 

across the private alley, I used the private alley at the 

rear of his property to haul my garbage and recycling 
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to the alley location where it was picked up, to bring 

in sod and landscaping material, and to remove debris 

from my rear yard and house.

8. From the time Mr. Hayden constructed the ungated 

fence across the private alley until the present, Mr. 

Hayden has prevented me from using that private 

alley. 

In addition, Gilderbloom filed his own motion for summary judgment. 

Gilderbloom argued that he was entitled to summary judgment because the 

conveyance of the 1405 Highland Avenue included an enduring right to access the 

alley adjoining Hayden’s back yard. He explained that “[t]he string of deeds for 

1405 Highland Avenue clearly gives an owner of that property a right to ‘use and 

enjoy the eighteen-foot alley’, no matter the owner of the land the alley is on.” He 

also noted that “the string of deeds for 1407 Highland Avenue, including the deed 

to Hayden, fully acknowledge [sic] the existence of the private alley.” 

Gilderbloom filed in the record the listing of the property for sale indicating that 

the back of the property has a privacy fence and alley access with room to build a 

garage. He filed copies of dozens of deeds conveying each of the parties’ property. 

Oral argument was scheduled for January 11, 2023. 

Following oral arguments, the circuit court entered an order granting 

summary judgment to Gilderbloom on February 27, 2023. The court determined 

that Hayden could not show ownership of the disputed alleyway through adverse 
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possession or otherwise and confirmed Gilderbloom’s right to use the alley as a 

matter of law. This appeal followed.

On appeal, Hayden argues that the circuit court erred by denying his 

motion for summary judgment and granting summary judgment in favor of 

Gilderbloom. He argues that the undisputed evidence established his ownership in 

fee simple of the disputed alleyway through adverse possession. We disagree.

Our role in reviewing a grant of summary judgment is to determine 

whether the circuit court correctly concluded that no genuine issue exists as to any 

material fact -- and whether, based on such facts, the moving party was entitled to 

judgment as a matter of law. Scifres v. Kraft, 916 S.W.2d 779 (Ky. App. 1996). 

Because only legal questions and the existence, or non-existence, of material facts 

are considered by the appellate court, a grant of summary judgment is reviewed de

novo. Lewis v. B & R Corp., 56 S.W.3d 432 (Ky. App. 2001).

An express easement is created by a written grant with the formalities 

of a deed. Loid v. Kell, 844 S.W.2d 428 (Ky. App. 1992). An easement 

appurtenant is an interest in land conferring the enduring right of the dominant 

tenement to enter the servient tenement. Meade v. Ginn, 159 S.W.3d 314 (Ky. 

2004) (quoting 25 Am.Jur.2d Easements and Licenses in Real Property § 11 

(1996); see also Scott v. Long Valley Farm Kentucky, Inc., 804 S.W.2d 15 (Ky. 

App. 1991)). It invests the owner with “privileges that he cannot be deprived of at 
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the mere will or wish of the proprietor of the servient estate.” Louisville Chair &

Furniture Co. v. Otter, 219 Ky. 757, 294 S.W. 483, 485 (1927). An easement

appurtenant inheres in the land but can be “terminated by an act of the parties (for 

example, abandonment, merger, or conveyance) or by operation of law, as in the 

case of forfeiture or otherwise.” Scott, 804 S.W.2d at 16. 

 The forfeiture of easements by way of abandonment is strongly

disfavored in Kentucky. Colyer v. Coyote Ridge Farm, LLC, 565 S.W.3d 659 (Ky.

App. 2018). An easement created by a recorded deed of the dominant tenement is 

not extinguished by its failure to be mentioned in the deed to a subsequent 

purchaser of the real property under the easement. See Dukes v. Link, 315 S.W.3d 

712, 713 (Ky. App. 2010). The terms of the conveyance determine the rights and 

liabilities of the parties. See Texas E. Transmission Corp. v. Carman, 314 S.W.2d 

684 (Ky. 1958) (citing Puckett v. Hatcher, 307 Ky. 160, 209 S.W.2d 742 (1948)). 

When Gilderbloom purchased his property at 1405 Highland Avenue, 

it carried with it -- as the dominant estate under existing deed covenants running 

with the land -- the right of enjoyment of the servient estate; namely, the disputed 

alley. Similarly, when Hayden purchased the property next door, it carried with it 

the nonexclusive right of enjoyment of the alley. By virtue of their ownership of 

the parcels adjacent to the alley, the parties enjoyed the relative rights and 

obligations that were fixed by the permanent easements established in their 
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respective recorded deeds. Accordingly, the alley property retained the burden of 

providing the dominant estates with access.

Hayden claimed that Gilderbloom’s right to use the alley was lost by 

nonuse. However, there is nothing in the record to indicate that the easements 

were extinguished. Assertions or evidence indicating that Gilderbloom’s 

successors in interest failed to make use of the alley for any length of time are 

utterly irrelevant in deciding whether Hayden had a right to preclude or obstruct

Gilderbloom’s entry upon it. In Johnson v. Clark, 22 Ky. 418, 57 S.W. 474, 475 

(1900), the court observed that “mere nonuser of an easement acquired by grant 

does not destroy the easement[.]” Instead, there must be some act on the part of 

the owner of the servient estate which is wholly inconsistent with the existence of 

the easement. Id. (emphasis added); City of Harrodsburg v. Cunningham, 299 Ky. 

193, 184 S.W.2d 357 (1944). 

 Hayden is not the owner of the servient estate; he, like Gilderbloom, 

was expressly granted the mere right to use it. There was no attempt in this case to 

provide evidence to show unequivocal conduct on the part of the owner of the 

servient estate consistent with an intention to discontinue the easement, which

could have caused the easement to be abandoned. In short, there is absolutely no

reason to conclude that the express easement granted the owner of 1405 Highland

Avenue has ever been abandoned or forfeited. This is purely a matter of law 
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properly subject to the circuit court’s determination by means of summary 

judgment. 

We wholly reject Hayden’s claim to the alley through adverse

possession. Hayden had an enforceable right to utilize the alley property. His

wrongful exclusion of (and/or the decision of his predecessors in interest to

exclude) fellow interest holders from the alley could not ripen into his fee simple

ownership of it. His wrongful exclusion of these interest holders was insufficient

as a matter of law to oust the owner of the alleyway property. Moreover, the

owner of the servient estate was never a party to these proceedings. Any attempt

to disseize the owner of the servient estate would have required his participation as

an indispensable party. 

The judgment of the Jefferson Circuit Court is affirmed. 

ALL CONCUR.

BRIEFS FOR APPELLANT:

Maurice A. Byrne, Jr. 

Louisville, Kentucky

BRIEF FOR APPELLEE:

Stephen T. Porter

Louisville, Kentucky