RENDERED: NOVEMBER 20, 2020; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-1384-MR

BETTY BOWLES APPELLANT

APPEAL FROM DAVIESS CIRCUIT COURT

v. HONORABLE JAY A. WETHINGTON, JUDGE

ACTION NO. 11-CI-01671

CITY UTILITY COMMISSION OF THE

CITY OF OWENSBORO, KENTUCKY

D/B/A OWENSBORO MUNICIPAL UTILITIES; ATMOS 

ENERGY CORPORATION; BELLSOUTH 

TELECOMMUNICATIONS, LLC; AND TIME WARNER

CABLE INFORMATION SERVICES (KENTUCKY), LLC APPELLEES

OPINION

AFFIRMING

**   **  **

BEFORE: CALDWELL, JONES, AND KRAMER, JUDGES.

CALDWELL, JUDGE: Betty Bowles appeals from the Daviess Circuit Court 

order granting summary judgment to Appellees City Utility Commission of the 

City of Owensboro, Kentucky d/b/a Owensboro Municipal Utilities; Atmos 
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Energy Corporation; BellSouth Telecommunications, LLC; and Time Warner

Cable Information Services (Kentucky), LLC (hereinafter referred to as “the 

utilities”). Having reviewed the record and the arguments of the parties, we affirm 

the decision of the circuit court.

FACTS

In 2011, Appellant Betty Bowles (Bowles) bought a home in the 

Fiddlesticks Subdivision in Owensboro, Kentucky, from the developer of the 

subdivision. Shortly after her purchase, Bowles engaged a contractor to construct 

a brick fence to encompass a portion of the rear of the home. The home was 

situated at the end of a block and on a lot which was triangular in shape. A 

neighbor noticed the construction and was concerned that the brick fence might be 

encroaching on a public utility easement. 

The recorded plat of the development clearly shows that adjacent to 

the streets running on two sides of Bowles’ property is a small strip of grass, then 

sidewalk, then another strip of grass, then the subject public utility easement. The 

brick fence Bowles was having erected on her property was situated within the tenfoot-wide easement. The easement was reserved for underground utilities and was 

shared by various public utility companies including the electric company, telecom 

company, and cable television provider, among others. 
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When advised by the neighbor that there was construction occurring at 

the Bowles’ property that might violate the public utility easement, an employee of 

Owensboro Municipal Utilities (OMU) went to the subdivision and noted a brick 

foundation and wall were in construction and appeared to encompass the public 

utility easement. Bowles saw the employee noting the construction and 

approached him. He informed her that she could not encroach upon the easement 

and that the construction would have to stop. Bowles indicated she would not 

interrupt the construction and intended to proceed with the erection of the brick 

fence.

Counsel for OMU then sent notice to counsel for Bowles and advised 

that the construction should be halted while the parties resolved the matter. The 

matter was not resolved, Bowles completed the construction of the brick fence, and 

the utilities filed a complaint in Daviess Circuit Court in late 2011 seeking a 

permanent injunction requiring the removal of the brick fence.

1

 

The circuit court entered an order granting the utilities’ motion for 

summary judgment and issuing a permanent injunction. The circuit court reasoned 

 

1 The complaint contained a second count concerning a zoning violation which was the subject 

of a separate litigation and appeal, wherein the zoning law was found to be unconstitutional. See 

Owensboro Metro. Bd. of Adj. v. Bowles, No. 2013-CA-001256-MR, 2014 WL 5786540 (Ky. 

App. Nov. 7, 2014), wherein a panel of this Court determined that the circuit court had properly 

found the zoning law “constituted an unlawful delegation of authority to the utilities that use 

public utility easements[.]” Id. at *1. The circuit court had held that the proper solution lay at 

common law and this Court agreed. Id. at *2. Thus, the matter was remanded, and it is from that 

remand that this action concerning a common law analysis now arises.
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that as each side had filed motions for summary judgment, there clearly was no 

dispute of material fact. The court noted that the PUE (“public utility easement”) 

was ten feet wide, noted on the subdivision plat, and was reserved for the use of all 

utilities which would benefit all property owners in the neighborhood by allowing 

utility providers to maintain and service utility lines. 

The circuit court pointed out that the utility providers needed not only 

access to the lines themselves, but also needed sufficient access to use machinery 

which would allow them to access the buried lines, should the need to service or 

upgrade the utility lines occur. As the brick fence restricted access to the easement 

from the right of way, it was unreasonable as it “imposes a significant burden on 

those utilities’ access to the easement, not only impeding service to Bowles’ house 

but service to other residences in the subdivision.” Further, the circuit court found 

it unreasonable for Bowles to expect the utilities to expend additional time and

resources to deconstruct her structure to reach their lines, should the need arise, 

and was unpersuaded by Bowles’ offer to hold harmless any utility company which 

would have to tear down the brick structure. It was unreasonable, also, for Bowles 

to have persisted in constructing the fence after being told that it was violative of 

the easement, the circuit court found. 

Having found Bowles to have unreasonably encroached upon the 

easement, the circuit court granted the utilities’ motion for summary judgment and 
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entered a permanent injunction ordering Bowles to remove the structure from the 

public utility easement within sixty (60) days of the entry of the order. The circuit

court later amended the order to provide for a stay of the injunction, if an 

injunction bond of $15,000 was tendered and should an appeal be filed and, 

unsurprisingly, Bowles appealed. We affirm.

STANDARD OF REVIEW

Appellate courts employ a de novo standard of review on questions 

concerning the propriety of a trial court’s ruling on a motion for summary 

judgment. Cmty. Fin. Servs. Bank v. Stamper, 586 S.W.3d 737, 741 (Ky. 2019). 

In the seminal case of Steelvest, Inc. v. Scansteel Service Center, Inc., the 

Kentucky Supreme Court explained that “the proper function of summary 

judgment is to terminate litigation when, as a matter of law, it appears that it would 

be impossible for the respondent to produce evidence at the trial warranting a 

judgment in his favor.” 807 S.W.2d 476, 480 (Ky. 1991). In reviewing such a 

motion, the trial court must view the facts “in a light most favorable to the party 

opposing the motion for summary judgment and all doubts are to be resolved in his 

favor,” and in so doing must examine the proof to ensure that no real issue of 

material fact exists. Id.

As the circuit court observed, when both parties file motions seeking 

summary judgment, the question of whether there is a genuine issue of material 
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fact in dispute is usually answered in the negative; both parties have already 

insisted in their motions that there exists no genuine issue of material fact and 

insist the question to be decided is merely a question of the application of law to 

these undisputed facts. Here, there clearly is no dispute of fact; the only dispute 

was whether, as a matter of law, Bowles’ actions were reasonable. We find they 

clearly were not.

ANALYSIS

Preliminarily, although the owner of a servient estate has the right of 

reasonable use of that portion of their property encompassed by the easement, such 

right is subject to the rights of the holder of the dominant estate, and “the owner 

cannot unreasonably interfere with the rights of the holder of the easement.” Com., 

Dep’t of Fish & Wildlife Res. v. Garner, 896 S.W.2d 10, 14 (Ky. 1995). The 

question of law presented by this case is whether erection of a brick fence of 

substance upon the public utility easement was a reasonable use by the servient 

estate. It was not.

Bowles has insisted that her use was reasonable because it would be

unlikely that the utilities would have reason to access their lines for many years. 

She also argued the lines buried were not high voltage, there was a gate in the brick 

fence that the utilities could use should they need to access the easement, and she 
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had offered permission to the utilities to dismantle the structure should the need 

ever arise. 

The circuit court considered all of these arguments and found them 

unpersuasive, holding that Bowles’ action of continuing the construction after 

being notified that her plans were an unreasonable encroachment on the easement 

was, in fact, not a reasonable reaction. It should have been of no surprise to 

Bowles that there was a public utility easement running along the boundaries of her 

property as such was clearly delineated on the subdivision plat. Her actions of 

ignoring warnings and proceeding should not allow her to now argue that the 

dominant estate should accommodate her encroachment on their reasonable use of 

their easement. “[T]he easement grantor may not interfere with the easement 

holder’s use of the easement.” Sawyers v. Beller, 384 S.W.3d 107, 111 (Ky. 2012) 

(citing Garner, 896 S.W.2d at 13-14). 

We hold that the brick structure restricts the utilities’ use of the 

easement. See Westphal v. Kentucky Utilities Co., 343 S.W.2d 367, 369 (Ky. 

1960) (“It is certain the Company’s interest in the land does not deprive defendants 

of the right to use their property in a proper manner as they see fit, provided they 

do not interfere with the reasonable use or enjoyment of the easement.”). The 

placement of the utility easement, adjacent to the sidewalks and the streets, is not 

random; public utilities might have need of heavy equipment to make repairs and 
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access the buried lines, and the easement is easily accessed by the nearby streets 

and sidewalks, where such equipment could be parked. The presence of a brick 

fence unreasonably interferes with the utilities’ ability to easily access the utility 

lines contained within the utility easement.

Requiring the utilities to rely upon Bowles’ promise to recompense 

them should they need to remove the obstruction is not reasonable, and as the 

Appellees point out, is an admission that the structure is an obstruction to the use 

of the easement and belies the unreasonableness of her use. See Cent. Ky. Nat. Gas 

Co. v. Huls, 241 S.W.2d 986, 988 (Ky. 1951).2

CONCLUSION

For the foregoing reasons, we affirm the circuit court’s order granting 

summary judgment for Appellees and the issuance of the permanent injunction 

requiring Bowles to remove the structure from within the public utility easement. 

KRAMER, JUDGE, CONCURS.

JONES, JUDGE, CONCURS IN RESULT ONLY.

 

2

“We call attention to the statement of appellees that they would either raise or move the 

building upon request that appellant might make proper inspection or properly patrol the line. 

This is an admission that there is a burden thrust upon the easement and a violation of the rights 

conferred by that easement even though it appears to appellees to be so minor as only to require a 

request to remove the building.” Cent. Ky. Nat. Gas Co. v. Huls, 241 S.W.2d 986, 988 (Ky. 

1951).
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BRIEFS FOR APPELLANT:

Keith Moorman

Warren J. Hoffmann

Jason Halligan

Lexington, Kentucky

R. Michael Sullivan

Jesse Mountjoy

Owensboro, Kentucky

BRIEF FOR APPELLEES:

Counsel for City Utility Commission 

of the City of Owensboro, Kentucky 

d/b/a Owensboro Municipal Utilities:

Patrick D. Pace

Stephen C. Pace

Owensboro, Kentucky

Counsel for Atmos Energy 

Corporation:

Mark R. Hutchinson

Counsel for BellSouth 

Telecommunications, LLC:

Cheryl Winn

Counsel for Time Warner Cable 

Information Services (Kentucky), 

LLC:

Michael J. Vetter, Sr.