dissenting.
I respectfully dissent from the majority opinion because the circuit court and the Court of Appeals had correctly determined that factually TCO had not acquired a prescriptive easement over the property in question. The trial judge was correct in finding that KRS 381.430 precluded TCO from acquiring prescriptive easements across the two tracts in question, even though it had used the property for its pipeline for more than forty years. The statute provides that if mineral or other interests in or rights appurtenant to land are severed from the surface of the property, the surface owners or those claiming through them are deemed to be statutory trustees for the benefit of the owners of the severed minerals. Consequently, the surface owners or those claiming through them may not adversely possess any interest in the property unless and until the statutory trust is unequivocally repudiated and the statutory requirements for adverse possession are satisfied. See KRS 413.010; Great Western Land Management, Inc. v. Slusher, Ky., 939 S.W.2d 865 (1997).
I must agree with the Court of Appeals when it concluded that by virtue of its claim through the surface owners, TCO’s use of the property was for the benefit of any parties such as Consol to whom an interest in the property, consisting of the exclusive power to convey future right of way easements, had passed. Therefore, it was not until the trust was repudiated by TCO in 1991, that possession of the property became hostile to the rights of Consol. Thus TCO did not meet the 15 year statutory requirement for adverse possession and it did not acquire prescriptive easements across the real property. TCO should bear the costs of moving the pipeline to another location because it never acquired any valid right to locate its pipeline across the two tracts in question.
I would affirm the decision of the Court of Appeals and the judgment of the circuit court.
LAMBERT, C.J., joins this dissenting opinion.