**RENDER~D:** DECEMBER 14, 2017 TO BE PUBLISHED

# ~upr:em:e 

# filourf of**~:enf** 

# uth.l,!

2016-SC-000513-DG
WILLIAM DAVID ELLINGTON ANO-JANE ELLINGTON



### v. ON REVIEW FROM COURT OFAPPEALS CASE NO. 2014-CA-001214 BATH CIRCUIT COURT NO. 10-CI-90020

HARLAN RANDALL BECRAFT; DONNA MICHELE BECRAFT; HENRY LEROY ANDERSON; BONNIE B. ANDERSON; UNKNOWN HEIRS OF EWELL GORDON BAILEY; BRITNEY BAILEY; DUSTIN BAILEY; ELEANORW. BAILEY; KAREN BAILEY HART; DANNY HART; ADDISON. BAILEY; LESLIE SPARKS; AND BATH COUNTY, KENTUCKY

OPINION OF THE COURT BY JUSTICE K;ELLER AFFIRMING IN PART AND REVERSING IN PART APPELLANTS

APPELLEES

Plaintiff, Ellington, filed a complaint and petition for declaration ofrights against Defendant, Becraft, and other parties in Bath County regarding a passway known as Smokey Hollow Road. Ellington asked that this road berecognized as a countyroad, public passway, or easement. The case was tried I before the Court, without ajury, and the Court enteredjudgment against the Defendant, finding that Smokey Hollow Road was a county road, a public passway, and that Ellington had acquired an easementby prescription. The Court ofAppeals reversed, holding that Ellington had failed to meethis burden· in proving the existence ofany countyroad, public passway; or easement. Ellington then soughtreview from this Court. For the reasons discussed herein, we affirm in part, although on different grounds, and reverse in part the opinion ofthe Court ofAppeals. I. BACKGROUND William Ellington obtained full interest to his property on what'is known
as Smokey Hollow Road in Bath County in 1995.**Th~** property was initially purchased by his.uncle in 1954, passed to his aunt and mother by will, and then passed partially to him bywill after the passing ofhis mother and then he obtained full interest in the propertyby will after his aunt's death in 1995. As
a child, he visited the propertywhile his uncle owned it. He did not start visiting again after his uncle's death until he obtained full ownership in 1995. He visited the property one to two times a yearuntil 2004. In 2004, Harlan Becraftpurchased his property on Smokey Hollow Road and erected a gate
across the road, limiting Ellington's.access to his property. Ellington testified "t

.

that, before Becraft erected the gate, he had never been denied access across the road by any other previous owner.

2Ellington brought suit against Becraft in 2010 allegirtg that Becrafthad.
no right to limit Ellington's access to'.this road. Ellington stated that Smokey Hollow Road was, in fact, a county road; in the alternative, Ellington alleged that Smokey Hollow Road was either a public road or passway, or thathe had acquired an easement ofsome kind over the pathway. The trial court entered findings offact and conclusions oflaw finding**th~t** the road was a county road, public road, and easementby prescription. The Court ofAppeals reversed on all findings, holding that Ellington had failed to meethis burden in proving Smokey Hollow Road was a countyroad, public road, or anykind ofeasement. Ellington then moved this Courtfor discretionary review, which we granted. II. STANDARD OF REVIEW Under Kentucky Rule ofCivil Procedure (CR) 52.01, "[i]n all actions tried upon the facts without ajury
... , tJ:ie court shall find the facts specifically and state separately its conclusions oflaw thereon and render an appropriate judgment[.]" Upon review, "[fjindings offact[] shall notbe set aside unless clearly erroneous, and due regard shall be given to the·opportunity ofthe trial courttojudge t1:1:e credibility ofthe witnesses." CR 52.01. Our first determination upon appeal, therefore, is to determine whether · the trial court's findings offact·are clearly erroneous. 

### See id. A trial court's findings are not clearly erroneous ifthey are supported by substantial evidence. 

### Moore v. Asente, 110 S.W.3d 336,. 354 (Ky. 2003). "'[S]ubstantial evidence'is '[e]vidence that a reasonable mind would accept as adequate to 3support a conclusion' and evidence that, when 'taken alone or in the light ofall the evidence,
... has sufficientprobative value to induce conviction in the

· minds ofreasonable men."' Id. (quoting Black's Law Dictionary 580 (7th ed.

1999) and citingto Kentucky StateRacing Comm'n v. Fuller, 481 S.W.2d 298, 308 (Ky. 1972) and Blankenship v. LloydBlankenship Coal Co., 463 S.W.2d 62 (Ky. 1970)). Ifthe trialjudge's findings are supported by substantial evidence, "then the appellate court's role is confined to determiningwhether those facts support the trialjudge's legal conclusion." Barberv. Bradley, 505 S.W.3d 749, 754 (Ky. 2016) (quoting Commonwealth v. Deloney, 20 S.W.3d 471, 473-74 (Ky. 2000)). In this review oflegal conclusions, we condu,ct a de novoreview. Barber, 505 S.:W.3d at 754 (citing Sawyers v. Better, 384 S.W.3d 107, 110 (Ky. 2012)). III. ANALYSIS A. COUNTY ROAD A countyroad, pursuantto Kentucky Revised Statute (KRS) 178.010 is a "public road[] which ha[s] been formally accepted bythe fiscal court ofthe county as a part ofthe county road system, or private roads, streets, or highways which have been acquired by the county [by gift for public purposes]

... " "SinGe
... 1914, a formal order ofthe fiscal courthas been required to establish a county road." Kentucky Props. Holding LLC v. Sproul, 507 S.W.3d 563, 569 (Ky. 2016) (citing Sarver v. Allen Cnty., 582 S.W.2d 40, 4

### t .(Ky. 1979) (citing Rose v. Nolen, 179 S.W. 229, 230 (Ky. 1915))).
4A road can be deemed public without "automatically" being considered a "county road." Sproul, 507 S.W.3d a 569. In other words, a county road is a statutory creation, rather than an equitable one such as a public road or easement. This distinction is for the simple policy that "[a] county should not be held responsible for maintenance ofa road which happens to become public through a process over which it has no control." Cary v. Pulaski Cnty. Fiscal Court, 420 S.W.3d 500, 508 (Ky. App. 2013) (citing Sarver, 582 S.W.2d at 41). Both parties stipulated that the first one-tenth ofa mile on Smokey Hollow Road, extending from Oakley Pebble Road, was a county road. However, the parties disputed that the road past that pointwas ever a county road as officially adopted by Bath County. The trial courtrelied upon testimony from witnesses regarding the use ofthe road; county maintenance of the road; and public and historical perception ofthe road to·make its determination that Smokey Hollow Road is a county road. Our review on this issue is limited to the application oflaw and we therefore apply the de novo standard. The trial court's legal analysis is more appropriate for the determination ofwhether a public road or passway was created by prescription. In contrast, the creation ofa county roadmust be by formal acceptance ofthe county in which the road is located. We accept thaethe initial one-tenth portion ofthe road from Oakley Pebble Road is a county road, as stipulated by the parties. And ifthe extent ofEllington's case was limited to that portion ofSmokey

5Hollow Road, then the stipulation would have been sufficient to meet Ellington's burden in establishing a county road. However, Ellington alleged that Smokey Hollow Road extended all the wayback across the Becraftproperty, further than agreed and stipulated by the parties. The Court**o~**Appeals correctly noted that its analysis was limited to the disputed portion ofthe road. Thus, Ellington had the burden ofproving the existence ofa county road for the entire length thathe alleged. He failed to provide any

### formal or 

### officialnotice or proofthat Bath County had ever adopted the entirety ofSmokeyHollow Road as a county road. Simplybecause part ofa pathway is a county road does not automatically lead to the conclusion that the entire passage is, or ever was, a county road. A countyroad must be proven by such formal or official action ofthe county; "before a road open to the public shall be recognized as a county road, it must have been established by order ofcourt." fllinois Cent. R. Co. v. Hopkins Cnty., 369 S.W.2d 116, 117 (Ky. 1963) (citing Rose, 179 S.W. 229). Although other potential rights ofpassage maybe created without such formal action, as will be discussed herein, a countyroad'is a county creation and mustbe proven as such. 1 Therefore, Ellington's claim must fail and the trial court erred in finding the existence ofa county road.

1 We note that Ellington and the trial court considered Bath County's failure to respond to any complaint as acceptance that Smokey Hollow Roadis a countyroad as a matter oflaw. Although Ellington may have been entitled to defaultjudgment against the non-responding party, that does not estop Becraftfrom asserting defenses against the same claims affectinghis property. In fact, "ifeither ofthe defendants [in a case against multiple defendants] should, in ajoint or separate answer, relyupon a defense which goes to the entire merits ofthe action
... ajudgmentcannotbe rendered 6Additionally, the trial court's reliance upon KRS 178.070 regarding discontinuance ofa county road is also misplaced. Ellington failed to prove

.**~** there was ever a county road beyond the stipulated one-tenth ofa mile. Thus, discontinuance ofa county road was irrelevant because there was no proof ther.e was ever a county road to discontinue. On this issue, we therefore affirm the Court ofAppeals holding that the passway over the Becraftproperty is not
a county road as a matter oflaw. B. PUBLIC ROAD "[A] general and long-continued use ofa passway by the public as a right will create the right to continue the use and the owner ofthe land traversed by the passwaywho allows the public to use it as a highway for a longperiod of years under a claim ofrightwill be estopped from denying a dedication to the public." 

### Gardnerv. Hope, 58 S.W.2d 353, 354 (Ky. 1933). The key to establishment ofa public road, therefore, is an implied or express dedication of that road to the public's use. Dedication ofa public passway can be completed either through statutory, formal means (KRS 82.400 or KRS_ 178.025) or through common law informal means. The parties in this case never pleaded

against any ofthe defendants until that pleais disposed of; and ifthat defendant should succeedupon such a plea, the action must be dismissed as to all ofthejoint defendants." Tackett v. Green, 218 S.W. 468, 469 (Ky. 1920) (quoting Newman's Pleading and Practice § 439). As such, at the time oftrial, prior to any separate or finaljudgments against otherparties, there was no preclusive effectto the failure to answer. Thus, the trial court and appellate courts upon review must examine the merits ofthe case presentedby the parties ratherthan simply accept what was not presentedby a separate defendant. 7that there had been a formal dedication so the common law ofinformal dedication applies. Informal dedication can be completed through two theories: dedication by estoppel or dedication by prescription. "[D]edication by estoppel
... does not have set time limits, but is based on promises and reliance thereon." Nash v. ·Campbell Cnty. Fiscal Court,**~45** S.W.3d 811, 819 (Ky. 2011) (citing KRS

82.400(3); Bluegrass Manor v. Mall St. Matthews Ltd. P'ship, 964 S.W.2d.431, 433 (Ky. App. 1998); Henry FischerBuilder, Inc. v. Magee, 957 S.W.2d 303, 306 (Ky. App. 1997)). In contrast, "dedication by prescription holds that the long continued use ofa highway by the general public rests upon a presumption of
a lost grant, arising from the continuous adverse use ofland (with the same elements ofadverse possession)." Nash, 345 S.W.3d at 819 (citing 2 (\merican Law ofProperty§ 9.50(c) at 483; Louisville & N.R. Co. v. Engle, 129 S.W.2d 133, 134 (Ky. 1939)). The Court ofAppeals here, however, found that dedication by estoppel required continuous and substantial use by the public for

# along**du~ation** oftime so as to implyintentto dedicate. In addition, the Court of Appeals held that dedication by prescription required public use thatwas continuous, actual, open, and hostile for 15 years andcounty control for 15 years.Thus, the issue before this Court raises several clashes among this Commonwealth'sjurisprudence. There are three main issues we must conclusively decide to bring clarityto the situation: (l) does informal dedication, either by prescription or estoppel, ofa public road require county 8control; (2) what is the·_requirement for dedication by estoppel; and (3) does dedication by prescription require adverse use? 

### InformalDedication ofa PublicRoadDoesNotRequire County**Contr~l** According to the Restatement (Third) ofProperty, a servitude can be created for the benefit ofthe public. Restatement (Third) ofProperty§ 2.18 cmt. d (Am. Law Inst. 2000). These servitudes are created through dedication. Id. "[D]edication may take place without the participation ofany governmental body Qr other identified party other than the dedicator." Id. Rather than relyingupon any kind ofcounty or government control, "[d]edication requires
an offer by the owner ofthe land and acceptance by the

### public." Restatement (Third) ofProperty§ 2.18 cmt. e (Am. Law Inst. 2000) (emphasis added). This Court's predecessor made holdings consistentwith the Restatement
as indicated. In 

### Freeman v. Dugger, the Court clearly held that "formal acceptance by public officials [is not] necessary to complete the dedicati.on." 286 S.W.2d 894, 897 (Ky. 1956) (citing 

### Riley_v. Buchanan, 76 S.W. 527 (Ky. 1903)). Instead, "[t]he question is
... one ofreliance by the

### publicon appearances created by the landowner." 

### Freeman, 286 S.W.2d at 896 (emphasis added). In 

### Riley v. Buchanan, the Court delved into whether longcontinued use could, on its own, be sufficientto imply acceptance ofa dedication. 76 S.W. at 528-30. "Thatthe public officials
... should have it in their exclusive powerto deny the public the right to accept the road by merely neglecting to provide for its maintenance
... is not reasonable." Id. at 530. This distinction·makes even more sense when the Court considers the various 9requirements and responsibilities involved with county roads, statutory public roads, and common law public roads. Counties may officially act to adopt county and public roads. But the public may still acquirerights ofpassage without any involvementfrom public officials. However, this principle has been muddied by more recent case law. In Watson v. Crittenden Cnty. Fiscal Court, the Court ofAppeals held that "a public road may be acquired by prescription onlyupon (1) fifteen years public
use and (2) a like number ofyears ofcontrol and maintenance by the government." 771 S.W.2d 47, 48 (Ky. App. 1989). The Court cited to Louisville & Nashville R.R. Co. v. Whittle's Adm'rs, in which the Courtheld that public "use, without the exercise ofany power over the road by the county court, will not make it a public highway." 287 S.W. 894, 895 (Ky. 1926) (internal citations and emphasis omitted). That Court, in turn, cited to several cases for the preceding proposition, all from 1920 and earlier.

. . And thus begins a clear conflict among our case law thatwe must now resolve. To resolve this conflict, we find the reasoning of Freeman and Riley

. ' most compelling. In more modern history, our legislature has seen fit to allow multiple avenues for county officials to take steps to create formal county and public roads.· There are formal processes for these steps to take place. However, we agree with the Rileycourt: an official's refusal to maintain an area ofroad should not prevent the public from ever acquiring rights to a passage that may be necessary for the public's full enjoyment oftheir town. The county has its methods for obtaining roads and pathways; the public should 10also have its own opportunities for obtaining such rights. Thus, we hold that county control is notnecessary to establish a common law public road. Instead, the question is one offact: whether the public has acquired and accepted a dedication by estoppel or prescription, neither ofwhich mustbe , . proven by county control. County control can be evidence ofa public acceptance; butit is not necessary to prove that acceptance or dedication. To the extent any prior case law conflicts with this holding, we now overturn those holdings and stand true to the principle thatpublic roads can be created without proving county control for any period oftime. This holding also comports with this Court's holdings, and this Court's predecessor's holdings, in Riley, Freeman, Sarver, and Sproul. The reasoning is consistent:
our GeneralAssembly has.created formal processes bywhich county governments can obtain propertyrights. Common law still retains powers through which the public itselfcan obtain**righ~s** to passways, without any interference or involvement from government officials. 

### Dedication by

### EstoppelRequiresa Promise andReliance Thereon In Nash, this Court stated that "dedication by estoppel
... does not have set time limits, but is based on promises and reliance thereon." Nash, 345 S.W.3d at 819 (citing KRS 82.400(3); Bluegrass Manor, 964 S.W.2d at 433; Henry FischerBuilder, Inc., 957 S.W.2d at 306)). "[D]edication by estoppel
... involves promises andjustified contractual reliance thereon." Henry Fischer Builder, Inc., 957 S.W.2d at 306.

11In the case subju.dice, the Court ofAppeals reversed a finding ofa public road, relying upon Freeman v. Dugger. The Court held that "[a] public road is dedicated by estoppel when the public continuously and substantiallyuses the road for a long duration s.o as to evidence the landowner's intent to dedicate such road." The Court relied upon the language in Freeman that a landowner who allows long-continued use by the public "will be estopped from denying a dedication to the public." Freeman, 286 S.W.2d at 896 (quoting Gardner, 58 S.W.2d at 453). Although the Courtutilized the language ofestoppel, this description instead refers to the method ofprescription bywhich the public can obtain propertyinterest in a passway. It seems our courts have struggled in distinguishing these oft-intertwined and confusing·concepts, thus leading to inconsistent and sometimes conflicting results. We now clarify: dedication by estoppel requires a promise from the landowner, either express or implied, and a reliance thereon by the public. We cannot enumerate all the ways bywhich a plaintiffcould prove this promise and reliance. What may prove dedication by estoppel may also prove dedication byprescription
.. These concepts·often conflagrate and obfuscate

- however, this Court mustremain true to the underlying principles. Here, dedication by estoppel relies upon the theory ofestoppel itself. A promise and the public's reliance upon thatpromise estops the landownerfrom asserting his private interest rights as dominant to that ofthe interest created in the public.

12

### Dedicationby

### PrescriptionRequiresAdverse Use In 

### Nash, this Court stated that "dedication byprescription holds that·the long continued use ofa highway by the general public rests upon a presumption ofa lost grant, arising from the continuous 

### adverseuse ofland (with the same elements ofadverse possession)." 

### Nash, 345 S.W.3d at 819 (citing 2 American Law ofProperty§ 9.50(c) at483; 

### Engle, 129 S.W.2d at 134) (emphasis added). This case refersto the lost-grant theory. "Under this theory, long-continued use orpossession can raise a presumption that the right exercised was previously conveyed to the user orpossessor and that the instrument ofconveyance has been lost." Jerome J. Curtis, Jr., 

### Reviving the Lost Grant, 23 Real Prop. Prob. & Tr. J. 535, 535 (1988). Per the Restatement, this idea arose in propertylaw "thatlong-continued use or possession is evidence ofan entitlement created in the past, which evolved into the lost-grant fiction ofEnglish and American law." Restatement (Third) ofProperty§ 2.17 cmt. b (Am. Law Inst. 2000). However, "[i]n the 20th century; American courts

... largely discarded lost-grant theory. ,In its place, they have substituted a combination ofstatute-of-limitations and acquisitive-prescription theories." Id. Rather than requiring fully adverse use,2 under this combination oftheories,

2 There are five elements which must be metin order to make 

### a claim oftitle through adverse possession: "l) possession mustbe hostile and under a claim ofright, 2) itmust be actual, 3) it must be exclusive, 4) itmust be continuous, and 5) it must be open and notorious." Moore v. Stills, 307 S.W.3d 71, 77 (Ky. 2010) (quoting AppalachianReg'lHealthcare, Inc. v. Royal CrownBottljng Co., Inc., 824 S.W.2d 878, 880 (Ky. 1992) (citing Tartar v. Tucker, 280 S.W.2d 150, 152 (Ky. 1955)). The elements "must all be maintained for the statutoryperiod offifteen years, and itis the claimant's burden to prove them by clear and convincing evidence." Moore, 307 S
.. W.3d at 77-78 (citing CommonivealthDept. of Parks v. Stephens, 407 S.W.2d 711 13"[m]odern American prescription doctrine requires only that a prescriptive use be maintained in a manner thatis open or notorious and be continued without effective interruption for the prescriptive period." Restatement (Third) of Property§ 2.17 cmt. g (Am. Law Inst. 2000). The notorious and open requirementunder the prescriptive doctrine offers a simple purpose: "to give the owner ofthe servient estate ample opportunity to protect against the establishment ofprescriptive rights." Restatement (Third) ofProperty§ 2.17 cmt. h (Am. Law Inst. 2000). Additionally, the continuous element also supports a generalprinciple and policy: "adverse possession mustbe
. 

### continuousto oustthe true owner; otherwise, the latter's constructive possession reasserts· itselfwhenever the disseizor abandons his occupancy even for a shortperiod oftime." 

### Thompson ·
v. Ratcliff, 245 S.W.2d 592, 592-93 (Ky. 1952) (emphasis original). This Court's more recent trend, however, is contrary to the more lenient requirements proposed by the Restatement. This Court has held that acquiring
a private easement by prescription must meet allthe elements ofadverse

·possession. 

### Columbia Gas Transmission Corp. v. Consol of Kentucky, Inc., 15 S.W.3d 727, 730 (Ky. 2000) (internal citations omitted). "[A] prescriptive easement can be acquired by actual, hostile, open and notorious, exclusive, and continuous possession ofthe property for the statutory period offifteen years." Id. (internal citations omitted). Even further, our case law has

(Ky: 1996) arid Flinn v. Blakeman, 71 S.W.2d 961 (Ky. 1934) (overruled in part by Warfield Natural Gas Co. v. Ward, 149 S.W.2d 705 (Ky. 1940))). 14previously stated that "[i]n order to establish that the passway had ripened into
a private or a public way, plaintiffmust show itwas used 

### adverselybyhim or his predecessors in title or by the public generally in an open[,] continuous[,] and uninterrupted manner for 15years: 

### Romingerv. City Realty Co., 324 S.W.2d 806, 808 (Ky. 1959) (citations omitted) (emphasis added). The Restatement position is strictly contrary to this Court's statements· in the previously cited cases that all the elements ofadverse possession must be met to establish a public road through prescriptive dedication. Although the

. . modern position on the requirements for prescriptive acquisition ofproperty

.**~** rights are persuasive, we also find our Court'sjurisprudence compelling. Finding the language of

### Nash and 

### Rominger, and this Court's treatment of adverse possession and prescriptive rights generallyindicative, and in an effort to be consistentwith our interpretation oflaw, we hold that the public must 

### adverselypossess the property in question before acquiring an interest in a public road or passway. Thus, all the elements ofadverse possession must be satisfied before a public road will be considered established. Our position is stricter than that ofthe Restatement. However, we believe this is consistentwith this Court's and this Commonwealth's position
on property rights. "[P]rivate property is too sacred and the rights ofcitizens
are too well guarded under our constitutional form ofgovernment fo be sacrificed at the public behests without compensation." 

### Elizabethtown, Lexington & 

### B.S.R. Co. v. Combs, 73 Ky. 382, 389 (Ky. 1874) (quoting 

### City of -Louisville v. LouisvilleRollingMill Co., 66 Ky. 416, 430 (Ky. 1867)). The Court 15further recognized "thatfundamental maxim ofa free government which requires that the right to private property should be held sacred." Combs, 73 Ky. at 392. While these statements were made in the context ofeminent domain questions, we recognize the inherent sanctity ofpropertyrights within this Commonwealth. The Kentucky Constitution expressly guarantees "[t]he right ofacquiring and protecting property." KY. Const.§ 1. Thus, we see no
reason to depart from this fundamental beliefand create a more lenient process through which property owners could lose rights to their ownprivately held property. As stated in p·revious law and consistentwith ourjurisprudence on · adverse possession and private easements by prescription, the prescriptive period is fifteen years and all the elements ofadverse possession must be met for these fifteen years. Thus, in summary, the general public can obtain propertyinterests through dedication ofpathways and roads without formal or informal county action. The public can create a public road and property interest therein through two methods: dedication by estoppel and dedication by prescription. Dedication by estoppel does notrequire a set amount oftime but instead involves promises and a distinct reliance thereon, estopping the landowner from denying the public use ofthe road. Dedication by prescription requires adverse use for the statutory period offifteen years. Having setforth some clarification on the law surrounding informal dedication ofa public road, we must now assess whether the trial court 16correctly**determin~d** that Smokey Hollow Road was a public road. In order to review the trial court's determination, we must first examine whether its findings offact were clearly erroneous. Ifthey are not clearly erroneous, we will then·review the legal conclusion 

### de novo. 

### The Trial Court's Findings and Conclusion of Law The trial court determined: The road involved in this action has been marked and identified as running from and connecting Oakley-Pebble ·Road through the property now owned by the Bailey family, through the property now owned by the Becraft/Anderson Defendants and through the property now owned by the Ellingtons to the White Oak Turnpike, now known as White Oak Road since at least 1884. Smokey Hollow Road is still shown on maps sold to the public showing the roads in Bath County as well. Additionally, in reviewing witness testimony, the trial court found: David Ellington testified about use ofthe road by the public
· during the 1950s. when his family first purchased the

property. James Reed, a witness not related to any of the interested parties, testified about the use of the road by the public during the 1960s. and the 1970s. Mr. Reed discussed his andhisfather'suse oftheroadto getto andfrom the Crain farm and to drive cattle on and offthe property. He discussed the use of the road by specific members of the public, including but not limited to Dayton (Doc) Denton, Franklin and Addie Vice and Holman Stewart, to get to residences in which they lived along the road in the question. Officials from the County, such asTomWarren from the Bath County Road Department, also testified about the use of Smokey Hollow Road through the years by buses from the BathCountySchoolSystem, wellintothepropertynowowned by the Becraft/Anderson Defendants: Based on these facts, the trial court fourid that the road was a public passway.

17

### Reversalbythe Court of Appeals On appeal, the Court ofAppeals reversed the finding of

## a: public road by the trial court. The Court stated that "there was no evidence introduced that the alleged passway running through Becraft's propertywas controlled and maintained by Bath Countyfor a period offifteen years." The Court ofAppeals determined that 'the Ellingtons fai_led to demonstrate that Bath County continuously for a period offifteen years maintained the alleged passway over the Becraft property." Thus, "[i]n the absence of such evidence, [the Court of Appeals] conclude[d] the alleged passway upon the Becraft property was not a· public road acquired through prescription as a matter oflaw." The Court also determined that Ellington failed to provide evidence sufficient to find dedication ofa public road by estoppel. The Court ofAppeals determined the evidence presented to the trial courtmerely sh.owed permissive
use by "adjoining tenants or landowners." The Court ofAppeals held that "the evidence overwhelmingly demonstrates that no passwayis physically present
over ... the Becraft property ... capable ofproviding vehicular access to the
. Ellingtons'**property.'~** The Court ofAppeals "[did] notbelieve the facts indicate[d] a clear intent by Becraft or his predecessors in title to abandon their interest in the alleged passway and dedicate it to public use." 

### The Trial Court's Findings ofFact Were Not ClearlyErroneous After our review ofthe record, we cannot conclude that the trial court's findings offact are clearly erroneous. "[S]imple doubt as to the appropriateness ofa finding will notjustifyits reversal." Sproul, 507 S.W.3d at 18569 (citing 

### D.G.R
.. v. Commonwealth, Cabinet forHealth & 

### Family Servs., 364 S.W.3d 106, 114 (Ky. 2012) (internal citations omitted)). Instead, ifthe findings are supported by "[e]vidence that a reasonable mind would accept as adequate to support a conclusion," then the appellate court cannot set aside those fipdings. 

### Vinson v. Sorrell, 136 S.W.3d 465, 470 (Ky. 2004) (internal citations omitted). Given this standard, we hold that the trial court's findings offact are supported by substantial evidence in the record, based on exhibits and witness testimony. There was no clear error in any ofthe c_ourt's interpretations or impressions ofwitness testimony. There was evidence to supporthis findings. Itis not an appellate court's position to review facts and substitute its own determinations for that ofthe trial court. The trial court is due deference in itsjudgment ofcredibility and role oftruth-finding. We must now, however, determine 

### de novowhether these findings support the legal conclusion reached by the trial court. 

### EllingtonFailed to

### EstablishEvidence ofa PublicRoad · The issue before us is whether, as a matter oflaw, the trial court's findings offacts are sufficientto establish an implied dedication ofthisportion ofSmokey Hollow Road to create a public road. As stated, this implied dedication could be by estoppel, requiring proofofpromise and reliance. Neither the parties nor the trial court in this case made any mention of promises or reliance and none ofthe proofpresented applied to these legal concepts.-' As such, the only alternative method ofdedication would be by prescription. Evidence ofthis dedication canvary. But, as we have stated, the 19plaintiffs proofmustbe sufficient to establish adverse use ofthe roadby the public for the statutory period offifteen years.. After careful review ofthe trial court's findings and the record, we hold that the evidence presented bythe plaintiffwas insufficientto meet this burden. Adverse possession requires a showingthat possession is: (1) hostile "under a claim ofright"; (2) actual; (3) exclusive;3 (4) continμous; and (5) open and notorious. 

### SeeMoore, 307 S.W.3d at 77 (quoting

### AppalachianReg'l Healthcare, Inc., 824 S.W.2d at 880 (citing 

### Tartar, 280 S.W.2d at 15.2)). "[I]t is the claimant's burden to prove [these elements] by clear and convincing evidence." 

### Moore, 307 S.W.3d at 77-78. Like prescriptive easements, "[t]he ·acts necessary to acquire [a public road] by prescription depend on the nature

· ofthe interestto be possessed." 

### See Columbia Gas Transmission Corp., 15

S.W.3d at 730. We are unpersuaded that the use here was sufficient to**establish~** as a matter oflaw, an actual use by the

### public. "[O]neofthe essentials ofthe establishment ofa road by prescription is the use ofthe land in question by the public and such use must be by the public generally as a way commonto all." 

### Rominger, 324 S.W.2d at 808. "[T]he mere use by a few individuals froμi time to time, as distinguished from the public generally, does not constitute such

3 While the element ofexclusivitymay seem impossible in the context ofthe general public, we simplynote: the exclusivity elements "means that [the property] must not be shared with the disseised owner. Two or more persons may be coadverse possessors ..." Elements-Exclusive, 3A Ky. Prac. Real Estate Transactions§ 19:5. While this element maybe more difficult to prove in these cases, it is possible for the general public at large to,'as a group, adversely and exclusively possessrights to a passage on private property. 20use as creates title in the public by prescription." Id. Here, everywitness testified as to use by a few individuals once**t~** twice a year for a few years here and there. The trial court literally listed use by only five specific individuals, which was found to constitute "public" use. The only general use found by the trial court was acknowledgement 

### ofthe road in atlases. Butwe have to emphasize that the use bythe public mustbe actualand notjusttheoretical. The evidence was insufficientto show a use by the general public for the. proper prescriptive period. The use ofthis passage was only for the purpose of reaching the Ellington property; itwas hardly a necessary passage for the community at large. Instead, itwas limited to those few members ofthe public (rather than the general public atlarge) using the path to reach the homes located alongwhatwas known as Smokey Hollow Road. This is insufficient as
a matter oflaw to constitute actual.use by the public to create a public road. An additional problem arises with the prescriptive period as James Reed testified that the specific**~se** he referred to, in pasturing cattle, occurred for about five to sixyears, albeit in the 1960s and 1970s. There was no actual evidence ofa timeline, proving adverse, actual use, by the public continuously, for the full fifteen years required. Given the facts as heard by the trial court, the record before us, and our . 

### de novareview ofthe law, we musthold that the evidence presented, as a matter oflaw, was insufficient to establish a public road. Thus, we affirm this portion ofthe holding ofthe Court ofAppeals, although on different grounds.

21C. EASEMENT BY PRESCRIPTION The trial courtfound that Ellington had established a prescriptive easement over Becraft's property. Likewise, the Court ofAppeals held that this prescriptive easement hadbeen created 1?ut had been abandoned. Once again,
we review the trial court's findings offact for clear error and the legal conclusions under a 

### de novo standard. 

### The Tri.al Court's Findings and Conclusion of Law The trial court made the following findings, based upon the evidence and testimony presented to it at trial: DavidEllington['sfamily acquiredtheproperty]
... in 1954and

... [Ellington] personally visited the property at that time and used the route from Oakley Pebble Road to the property then owned by his uncle. Mr. Ellington testified about the farming that occurred on the property throughout several decades where all those tending the cattle would access the property from Oakley Pebble Road via,the road involved in this action across the property now owned by the Baileys and the property now owned by Becraft/Anderson Defendants. He testified about cattle being brought in and out along such route. He testified that no one asked for permission to use that route due to the fact that people had always known·or· assumed they had the right to do so and that no one who previouslyownedthe propertynow ownedbythe Baileyfamily or the property now owned by the Becraft/Anderson Defendants ever tried to stop anyone from using thatroute ... [James Reed] testified about he and his father working the cattle on the farm owned by Hubert Crain, David Ellington's uncle and a predecessor in interest. Mr. Reed testified about using the route across the property now owned by the Bailey family and the property now owned by the Becraft/Anderson Defendants to not only gain access to the farm and to the cattle themselves but also to bring cattle onto and take cattle off of the property. He also testified about how other predecessors in**i~terest** lived on the property in question and gained access to their residences using the road across the 22propertynowownedbytheBaileyfamily andthepropertynow owned by the Becraft/Anderson Defendants, including Dayton "Doc" Denton, Franklin and Addie Vice and Holman Stewart. Fromthese facts, the trial courtdetermined thatthe use oftheroad byEllington and his predecessors in interest was actual, hostile, open and notorious, and continuous. The court found that these findings were sufficient to create a prescriptive easement across the Becraft property. The court also noted that Becraft offered no evidence to contradict the use ofthe road in the time periods discussed. Thetrialcourtalsofound thatalthoughBecraft'sgateblockedaccess to this path beginning in 2004, that block was insufficient to extinguish any prescriptive easement as it had been there for less than the required 15 years. 

### Reversal by

### the Court of Appeals The Court ofAppeals reversed the trial court's findings on this issue as well, holding that there had been a prescriptive easementbutithad been abandoned. The Courtheld that "[t]here was sufficient evidence that the Ellingtons and the Ellingtons'predecessors in title utilized the passway running through the Becraftproperty in an actual, open, notorious, and hostile
manner for a period offifteen years." The Court ofAppeals, however, inferred
an intentto abandon from the Ellingtons' "nonuse ofthe right-of-way for some sixyears [and] also bythe physical nonexistence ofthe right-of-way over the southwestern portion ofthe Becraftproperty." The Courtheld that this evidenced abandonment ofthe easement and extinguished any rights.the Ellingtons had acquired in the passway. Judge Debra Lambert dissented from



### 23this portion ofthe opinion, stating that she would have found the easement had notbeen abandoned and wol;l.ld have affirmed the trial court. 

### The Trial.Court's Findings Were Not ClearlyErroneous A trial court's "findings offact are clearly erroneous only ifthey are manifestlyagainst the weight ofthe evidence." Frances v. Frances, 266 S.W.3d 754, 756 (Ky. 2008) (citing Wells v. Wells, 412 S.W.2d 568, 571 (Ky. 1967)). In other**words~** an "appellate court may determine that findings are clearly
erroneous ifthey are without adequate evidentiary support ... "· Rogers v. Lexington-Fayette Urban County Gov't, 175 S.W.3d 569, 571 (Ky. 2005) (citing Oakwood Mobile Homes, Inc. v. Sprowls, 82 S.W.3d 193 (Ky. 2002)). After review ofthe trial court's findings and the record before us, we find no clear
error in the trial court's findings offact. The findings were supported by the testimony ofEllington, James Reed, and the exhibits presented by both parties. As such, we· now examine the court's conclusions oflaw de novo. 

### EllingtonHad a PrescriptiveEasement Over

### theBecraftPropertyandIt Has NotBeenAbandoned "The right to acquire an easement.by prescription is ofancient origin and is grounded in the common law." Columbia Gas Transmission Corp., 15 S.W.3d at 730 (citing Hall v. McLeod,. 59 Ky. 98 (Ky. 1859)). "As with adverse possession ofa fee simple estate, a prescriptive easement can be acquired by actual, hostile, open and notorious,.exclusive, and continuous possession of the property for the statutory period offifteen years." Columbia Gas Transmission Corp., 15 S.W.3d at 730 (citing KRS 4i3.010; Riggs v. Ketner, 187

24S.W.2d 287 (Ky. 1945); 

### Riley v. Jones, 174 S.W.2d 530, 531-32 (Ky. 1943); 

### Pickel v. Cornett, 147 S.W.2d 381, 382 (Ky. 1941). The trial courtfound the facts sufficient to establish that these elements had been met to create a prescriptive**easem~nt.** The Court ofAppeals, likewise, affirmed this portion ofthe trial court's order. We now hold that both courts were correct, and the evidence was sufficientto prove**th~t** a prescriptive easementwas created for the benefit ofEllington over Becraft's property. The evidence presented to the courtwas sufficientto establish Ellington, and Ellington's predecessors-in-interest, had used Smokey Hollow Road over the Becraft property in a hostile, open and notorious, exclusive, and continuous
manner for atleast fifteen years. Several witnesses testified ofEllington's use ofthe passway for moving cattle, without any permissionfrom the landowner. Additionally, even though Ellington expressed that his use ofthe passwaywas limited to one to two times a year, this is sufficientto create continuous use. "[C]ontinuous occupancy did not require that any person need live on the land. The important consideration is whether or not the · physical use ofthe property by the owner or his representative
... demonstrates

l that he is asserting dominion over the property." 

### Ratcliff, 245 S.W.2d at 593 (citing 

### Combs v. Ezell, 24 S.W.2d 301 (Ky. 1930)). This explanation also must be distinguished by the context here ofan 

### easementrather than adverse possession. A disseizor by adverse possession can acquire full title to property whereas the user ofa prescriptive easement can only acquire the right to use. 

### SeeLyle v. Holman, 238 S.W.2d 157, 159-160 (Ky. 1951). Thus, while adverse 25possession looks to meeting the elements through possession, it_ would be more aptto recognize that a prescriptive easement is created through use ofthe passway in the necessary way. Ellington's 

### usehere was continuous enough to meetthis element. But, it also leads to the limitation ofthis particular property interest. "[A]n easementis property ofthe nature ofthe land, itis an incorporeal right
.... When acquired by prescription it maybe conditional and restricted according to the use and purpose ofits enjoyment during the prescriptive period." 

### Id. at 159. An easement created thr"ough prescriptive use is limited to the use during the prescriptive period. The easement "will not ripen into a greater estate after the period oflimitation has passed." 

### Id. This Court's predecessor has cited thatuse ofa path as a fire exit can ripen into a prescriptive easementfor the purpose ofbeing a fire exit. 

### Id. at 159-60 (citing 

### Ben Snyder, Inc. v. PhoenixAmusement Co., 218 S.W.2d 62, 64 (Ky. 1949)). Thus, an easement mustbe "defined in conformitywith.the nature ofits use." 

### Lyle, 238 S.W.2d at 160. Therefore, Ellington's easement**~cross** Becraft's property is limited to the use found by the trial court during the prescriptive period, which was onlyingress and egress. The pathwas neverpaved or

. . constructed for other purposes and we see no facts discerning the necessityfor expanding the use ofthe**~asement** further than Ellington's prioruse. The Court ofAppeals held thatEllington's non-use ofthe easement after Becraft erected a gate in 2004 was sufficientto evidence abandonment ofthe easement. However, this holding is contrary to the law. "[A]n easement 26acquired by prescription may be extinguished by a nonuser under circumstancesindicating an intention ofabandonmentwhenever such nonuser has extended over that period oftime sufficientto have created the prescriptive right at its origin." 

### Jones v. Dunn, 205 S.W.2d 156, 157 (Ky. 1947) (citing 

### Childers v. Burger, 21 S.W.2d 805 (Ky. 1929); 

### City of Harrodsburg v. Cunningham, 184 S.W.2d 357 (Ky. 1944)). The prescriptive period hereis fifteen years; thus, non-use ofthe easement could only establish an iritent to abandon after

### fifteen yearsofnon-use. In this aspect, the Court ofAppeals majority opinion was flawed .and we reverse its holding. We find Becraft's evidence ofthe non-use ofthe passway compelling; the photographic evidence clearly shows an overgrown and vegetated path. However, this Court is not in a position to undermine findings offact by the trial court or supplement its ownjudgmentwhere evidence is lacking. Becraft did not present sufficient evidence to show non-use for the required fifteen years in order to prove abandonment ofthis easement. As such, we must
reverse the Court ofAppeals and reinstate the prder ofthe trial court holding that Ellington has acquired a prescriptive easementover the portion ofSmokey Hollow Road across Becraft's property. IV. CONCLUSION After careful review ofthe law, the trial court's order, and the law ofour Court, we make several general holdings today. First, a county road can be established only through formal action ofthe county. Second, a public road
can be established by informal dedication through estoppel or prescription 27without any action ofcounty officials. Dedication by estoppel requires a promise and reliance thereon while prescriptive dedication requires adverse use bythe public for the statutoryperiod. To this case specifically, we hold that· the evidence was insufficient to find a countyroad orpublic road. On those issues, we affirm the Court ofAppeals, although for differentreasons. We hold, however, that the evidence was sufficient to find a prescriptive easement and that said easementhad notbeen abandoned for.the requisite statutory period. On this issue, we reverse the Court ofAppeals and reinstate the order ofthe trial court. All sitting. Minton, Hughes, Keller, VanMeter and Venters, JJ., concur. Cunningham and Wright, JJ., concur in result onlywithout opinion.

28COUNSEL FORAPPELLANTS: Stephen Edward Neal White, Peck, Carrington, LLP COUNSEL FORAPPELLEE, HARLAN RANDALL BECRAFT: Leah Nell Hawkins COUNSEL FORAPPELLEE, BATH COUNTY, KENTUCKY: Kimberly SH Price

. . COUNSEL FORAPPELLEE, UNKNOWN HEIRS OF EWELL GORDON BAILEY: Julie Diane S Williamson Hughes LetcherWilliamson PSC COUNSELFORAPPELLEE, DONNA MICHELE BECRAFT: Donna Michele Becraft, Pro Se COUNSELFORAPPELLEE, HENRY LEROY ANDERSON: Henry LeroyAnderson, Pro Se COUNSEL FORAPPELLEE, BONNIE B. ANDERSON: Bonnie B. Anderson, Pro Se COUNSEL FORAPPELLEE, BRITNEY BAILEY: Britney Bailey, Pro Se COUNSELFORAPPELLEE, DUSTIN BAILEY: Dustin Bailey, Pro Se COUNSEL FORAPPELLEE, ELEANOR W. BAILEY:. EleanorW. Bailey, Pro Se COUNSELFORAPPELLEE, KAREN BAILEY HART: Karen Bailey Hart, Pro Se 

### 29COUNSEL FORAPPELLEE, DANNY HART: Danny Hart, Pro Se COUNSEL FORAPPELLEE, ADDISON BAILEY: Addison 

### Bailey, Pro Se COUNSEL FORAPPELLEE, LESLIE SPARKS: Leslie Sparks, Pro Se



### 30