RENDERED: FEBRUARY 16 , 2024; 10:00 A.M. NOT TO BE PUBLISHED 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 cross

motions for summary judgment. After our review, w e 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- 2

-

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 I ngram ( 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 alle y 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 bi ns 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 ext ending 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- 3

- line of said lot connect ing 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

- and

bounds 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 Str eet 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 tit le) simply describes the northern boundary- 4

-

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 consolidat ion” 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, P age 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.
(Emphas e s added

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

form er private alley by adverse possession and recorded [the “consolidation deed”]
in 2001, [Hayden] has owned and protected it by a back border fence.” Hayden- 5

-

asserted that “[f]or the last twenty (20) years, [he, Hayden] has had actual
possession, hostile co ntrol, 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 t hat 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 “Gilderb loom 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 ga te 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- 6

- to the alley location where it was picked up, to bring in sod and landscaping material, and to remo ve 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 summ ary 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 Hi ghland 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- 7

-

possession or otherwise and con firmed 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.

O ur role in reviewing a grant of summary judgment is to determine
whether the circuit court correctly concluded that no ge nuine 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

- existenc e, 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. G inn
, 159 S.W.3d 314 (Ky.
2004) (quoting 25 Am.Jur.2d Easements and Licenses in Real Property § 11

(1996); s ee 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 o f at- 8

-

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

examp le, 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 f orfeiture 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). A n easement created by a recorded deed of the dominant tenement is
not extinguished by its failure to be mentioned in the deed to a subsequ ent
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 o f 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. B y virtue of their ownership of
the parcels adjacent to the alle y , the parties enjoyed t he relative rights and
obligations that were fixed by the permanent easements established in their- 9

-

respective recorded deeds. Accordingly, the alley property retained the burden of
providing the dominant estates with access.

Hayden claim ed 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 m ake 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. ( e mphasis 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 evidenc e 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 expr ess easement granted the owner of 1405 Highland

Avenue has ever been abandoned or forfeited. This is purely a matter of law- 10

-

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 alle y 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.

T he judgment of the Jefferson Circuit Court is affirmed.

ALL CONCUR.

BRIEF S FOR APPELLANT:
Maurice A. Byrne, J r. Louisville, Kentucky BRIEF FOR APPELLEE:
Stephen T. Porter Louisville, Kentucky