RENDERED: MARCH 31, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0157-MR

DEBORAH CALLAHAN; CHERYL 

GAUNCE; AND KENNETH H. CLEM APPELLANTS 

v. 

APPEAL FROM SCOTT CIRCUIT COURT

HONORABLE BRIAN PRIVETT, JUDGE

ACTION NO. 21-CI-00144

GARY HENSLEY; CHUCK 

HENSLEY; GLENN CAMPBELL 

DRURY; JULIE A. DRURY; AND 

LUKE DRURY APPELLEES 

OPINION

REVERSING

AND REMANDING

**   **  **

BEFORE: THOMPSON, CHIEF JUDGE; COMBS AND JONES, JUDGES.

COMBS, JUDGE: In this property dispute, Deborah Callahan, Cheryl Gaunce, 

and Kenneth H. Clem (Appellants) appeal from a summary judgment of the Scott 

Circuit Court which held that a recorded deed in their chain of title conveyed an 
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absolute fee simple interest in a private way bisecting their property. On the 

contrary, Appellants argue that the recorded deed conveyed merely an easement. 

After our review, we are compelled to agree. Consequently, we reverse and 

remand for entry of an order consistent with this Opinion.

Our analysis renders a recitation of the entire procedural history of the 

litigation unnecessary. Our summary of the evidence is similarly abbreviated. The 

following pertinent facts, which are undisputed, present a single question of law. 

By a deed dated December 27, 1900, Nancy Anderson conveyed to 

her son, Abe Warth, a private way from Warth’s property over her own property to 

Finnell Turnpike in Georgetown. It was a narrow strip of land that bisected 

Anderson’s property and provided ingress and egress for Warth. Nancy Anderson 

is the predecessor in interest of “the Clem property” now owned by Deborah 

Callahan, Cheryl Gaunce, and Kenneth H. Clem. 

On March 20, 2021, Callahan, Gaunce, and Clem filed an action to

quiet title against Gary Hensley, Chuck Hensley, Glenn Campbell Drury, Julie A.

Drury, and Luke Drury (the Appellees). The Appellants alleged that the Hensleys 

and the Drurys (again, whose predecessor in interest was Warth, Anderson’s son, 

who originally received the interest in the passway) were overburdening the 

passway easement and wrongfully excluding them from their property. They also 
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alleged that the Hensleys and Drurys laid a water line beneath the easement 

without permission.

The Hensleys and Drurys answered the complaint and filed a 

counterclaim in which they alleged that Anderson’s deed to Warth conveyed fee 

simple absolute interest in the passway -- and not merely an easement. 

On May 18, 2021, Appellants Callahan, Gaunce, and Clem filed a 

motion for summary judgment. They argued that the Anderson deed conveyed 

only an easement and not an interest in fee simple. In June 2021, the Appellees, 

the Hensleys, and the Drurys filed a cross-motion for summary judgment. They 

argued that the conveyance from Anderson to Warth in 1900 conveyed a fee 

simple interest in the disputed way. On July 19, 2021, the Scott Circuit Court 

granted summary judgment to the Hensleys and Drurys. This timely appeal 

followed.

On appeal, Callahan, Gaunce, and Clem argue that the trial court erred 

by granting summary judgment to the Hensleys and Drurys. We agree.

The Kentucky Rules of Civil Procedure (CR) provide that summary 

judgment will be granted where the pleadings, depositions, answers to 

interrogatories, stipulations, admissions, and/or affidavits show that there is no 

genuine issue as to any material fact and that the moving party is entitled to 

judgment as a matter of law. CR 56.03. The parties agree that there are no 
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genuine issues of material fact concerning construction of the conveyance and that 

interpretation of the deed is entirely a matter of law. Consequently, the issue was 

appropriate for summary judgment. See Shields v. University of Louisville

Foundation, Inc., 536 S.W.3d 706 (Ky. App. 2017) (The interpretation of 

a deed presents an issue of law.). Therefore, we may not defer to the trial court’s 

interpretation of the conveyance. Vorherr v. Coldiron, 525 S.W.3d 532 (Ky. App. 

2017). Our review is de novo. Hazard Coal Corp. v. Knight, 325 S.W.3d 290 (Ky. 

2010); Dukes v. Link, 315 S.W.3d 712 (Ky. App. 2010).

In determining the interest conveyed by a deed, we must seek to give 

effect to the parties’ intentions as gathered from the four corners of the instrument. 

Hoskins Heirs v. Boggs, 242 S.W.3d 320 (Ky. 2007) (citing Phelps v. Sledd, 479 

S.W.2d 894, 896 (Ky. 1972)). The Anderson deed’s granting clause expressly 

conveys “a pass way” to Warth “through the land of [Anderson.]” The deed 

describes the location of the private way as follows: 

It is understood and agreed by & between both parties 

herein that said road or pass-way is to be about 30 ft 

wide through [Anderson’s] land . . . said road or 

passway is about 1⁄4 mile from [Warth’s land] through the 

land of [Anderson] to the aforesaid Finnell turnpike.

(Emphasis added.) 

Specific reference in a deed to a “passway” or “road” generally 

conveys an easement -- not a fee simple interest. Holbrook v. Hammond, 302 Ky. 
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10, 12-14, 192 S.W.2d 746, 747-48 (1946) (“the general grant of a passway, or 

right of way, over the land of the grantor at a particular place, does not confer 

either the possession or the right of possession of the land, but the mere right of 

way, or of passing over it.”) Moreover, the interest conveyed by Anderson’s deed 

is limited to a specific use and purpose remedy -- namely, to access the turnpike. 

 Easements are characterized as interests in property conveying the 

right to use land for specific, limited purposes. Hogg v. Hogg, 619 S.W.3d 921 

(Ky. App. 2020). Additionally, the deed describes the conveyed interest as passing 

“through the land of [Anderson]” and “through [Anderson’s] land.” Language 

indicating that the private way crosses Anderson’s property signaled her intention 

to retain ownership of that property and to convey merely an easement. Finally, 

we note that only nominal consideration was paid for the interest conveyed. While 

this fact by itself is not persuasive (particularly where the parties to the deed were 

blood relatives), it is nonetheless a factor to be considered in the analysis. Read 

together, the language used in the deed appears to convey only a right to use a 

designated path over Anderson’s property. It does not indicate that the conveyance 

intended to create or to pass an estate in fee. 

However, the habendum clause of the deed provides that Anderson 

conveys the interest “[t]o have and to hold . . . with all the appurtenances thereon 

to [Warth] his heirs and assigns forever with covenant of general warranty[.]” The 
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Hensleys and the Drurys argue that this language supports construction of the deed 

as conveying a fee simple interest in the strip of land to Warth. While we 

acknowledge their premise, the language used in the clause is only one factor 

among several that we must consider in determining whether the parties intended 

to grant a fee interest or an easement. Historically, the language of the granting 

clause has been given precedence over the verbiage of the habendum clause. See 

Kentucky Real Estate Bd. v. Smith, 272 Ky. 313, 114 S.W.2d 107 (1938).

 Construing the language of the entire instrument, particularly the 

granting clause, we conclude that the intention and purpose of the parties in 

executing it was to convey an easement rather than an interest in fee simple. The 

express language of the deed conveyed an easement to benefit the property now 

owned by the Hensleys and the Drurys.

We reverse the order of the Scott Circuit Court, and we remand for 

entry of an order consistent with this Opinion. 

ALL CONCUR.

BRIEFS FOR APPELLANTS:

Emmett Daniel Clifford

Cynthiana, Kentucky

BRIEF FOR APPELLEES:

Neil E. Duncliffe

Georgetown, Kentucky