William David Ellington v. Harlan Randall Becraft

RENDER~D: DECEMBER 14, 2017
TO BE PUBLISHED

~upr:em:e filourf of ~:enfuth.l,!

2016-SC-000513-DG

WILLIAM DAVID ELLINGTON APPELLANTS
ANO-JANE ELLINGTON

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

HARLAN RANDALL BECRAFT; DONNA APPELLEES
MICHELE BECRAFT; HENRY LEROY
ANDERSON; BONNIE B. ANDERSON;
UNKNOWN HEIRS OF EWELL GORDON
BAILEY; BRITNEY BAILEY; DUSTIN
BAILEY; ELEANOR W. 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

Plaintiff, Ellington, filed a complaint and petition for declaration of rights

against Defendant, Becraft, and other parties in Bath County regarding a

passway known as Smokey Hollow Road. Ellington asked that this road be
 recognized as a county road, public passway, or easement. The case was tried
I

before the Court, without a jury, and the Court entered judgment against the

Defendant, finding that Smokey Hollow Road was a county road, a public

passway, and that Ellington had acquired an easement by prescription. The

Court of Appeals reversed, holding that Ellington had failed to meet his burden·

in proving the existence of any county road, public passway; or easement.

Ellington then sought review from this Court. For the reasons discussed

herein, we affirm in part, although on different grounds, and reverse in part the

opinion of the Court of Appeals.

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 by will after the passing of his mother and then he

obtained full interest in the property by will after his aunt's death in 1995. As

a child, he visited the property while 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 year until 2004. In 2004, Harlan

Becraft purchased 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.

2
 Ellington brought suit against Becraft in 2010 allegirtg that Becraft had.

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 that he had

acquired an easement of some kind over the pathway.

The trial court entered findings of fact and conclusions of law finding

th~t the road was a county road, public road, and easement by prescription.

The Court of Appeals reversed on all findings, holding that Ellington had failed

to meet his burden in proving Smokey Hollow Road was a county road, public

road, or any kind of easement. Ellington then moved this Court for

discretionary review, which we granted.

II. STANDARD OF REVIEW

Under Kentucky Rule of Civil Procedure (CR) 52.01, "[i]n all actions tried

upon the facts without a jury ... , tJ:ie court shall find the facts specifically and

state separately its conclusions of law thereon and render an appropriate

judgment[.]" Upon review, "[fjindings of fact[] shall not be set aside unless

clearly erroneous, and due regard shall be given to the· opportunity of the trial

court to judge t1:1:e credibility of the witnesses." CR 52.01.

Our first determination upon appeal, therefore, is to determine whether ·

the trial court's findings of fact ·are clearly erroneous. See id. A trial court's

findings are not clearly erroneous if they 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

3
 support a conclusion' and evidence that, when 'taken alone or in the light of all

the evidence, ... has sufficient probative value to induce conviction in the

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

1999) and citing to Kentucky State Racing Comm'n v. Fuller, 481 S.W.2d 298,

308 (Ky. 1972) and Blankenship v. Lloyd Blankenship Coal Co., 463 S.W.2d 62

(Ky. 1970)).

If the trial judge's findings are supported by substantial evidence, "then

the appellate court's role is confined to determining whether those facts

support the trial judge's legal conclusion." Barber v. 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 of legal conclusions, we condu,ct a de novo review.

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 county road, pursuant to Kentucky Revised Statute (KRS) 178.010 is a

"public road[] which ha[s] been formally accepted by the fiscal court of the

county as a part of the 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 of the fiscal court has 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))).

4
 A 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 of a 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 of a mile on Smokey

Hollow Road, extending from Oakley Pebble Road, was a county road.

However, the parties disputed that the road past that point was ever a county

road as officially adopted by Bath County. The trial court relied upon

testimony from witnesses regarding the use of the road; county maintenance of

the road; and public and historical perception of the road to ·make its

determination that Smokey Hollow Road is a county road. Our review on this

issue is limited to the application of law and we therefore apply the de novo

standard.

The trial court's legal analysis is more appropriate for the determination

of whether a public road or passway was created by prescription. In contrast,

the creation of a county road must be by formal acceptance of the county in

which the road is located. We accept thaethe initial one-tenth portion of the

road from Oakley Pebble Road is a county road, as stipulated by the parties.

And if the extent of Ellington's case was limited to that portion of Smokey

5
Hollow 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

way back across the Becraft property, further than agreed and stipulated by

the parties. The Court o~ Appeals correctly noted that its analysis was limited

to the disputed portion of the road. Thus, Ellington had the burden of proving

the existence of a county road for the entire length that he alleged. He failed to

provide any formal or official notice or proof that Bath County had ever adopted

the entirety of Smokey Hollow Road as a county road. Simply because part of a

pathway is a county road does not automatically lead to the conclusion that

the entire passage is, or ever was, a county road.

A county road must be proven by such formal or official action of the

county; "before a road open to the public shall be recognized as a county road,

it must have been established by order of court." 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 of passage may be created without such formal action, as

will be discussed herein, a county road 'is a county creation and must be

proven as such. 1 Therefore, Ellington's claim must fail and the trial court

erred in finding the existence of a county road.

1We note that Ellington and the trial court considered Bath County's failure to
respond to any complaint as acceptance that Smokey Hollow Road is a county road as
a matter of law. Although Ellington may have been entitled to default judgment
against the non-responding party, that does not estop Becraft from asserting defenses
against the same claims affecting his property. In fact, "if either of the defendants [in
a case against multiple defendants] should, in a joint or separate answer, rely upon a
defense which goes to the entire merits of the action ... a judgment cannot be rendered
6
 Additionally, the trial court's reliance upon KRS 178.070 regarding

discontinuance
.
of a county road is also misplaced. Ellington failed to prove
~

there was ever a county road beyond the stipulated one-tenth of a mile. Thus,

discontinuance of a 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 of Appeals holding that the passway over the Becraft property is not

a county road as a matter of law.

B. PUBLIC ROAD

"[A] general and long-continued use of a passway by the public as a right

will create the right to continue the use and the owner of the land traversed by

the passway who allows the public to use it as a highway for a long period of

years under a claim of right will be estopped from denying a dedication to the

public." Gardner v. Hope, 58 S.W.2d 353, 354 (Ky. 1933). The key to

establishment of a public road, therefore, is an implied or express dedication of

that road to the public's use. Dedication of a 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 of the defendants until that plea is disposed of; and if that defendant
should succeed upon such a plea, the action must be dismissed as to all of the joint
defendants." Tackett v. Green, 218 S.W. 468, 469 (Ky. 1920) (quoting Newman's
Pleading and Practice § 439). As such, at the time of trial, prior to any separate or
final judgments against other parties, there was no preclusive effect to the failure to
answer. Thus, the trial court and appellate courts upon review must examine the
merits of the case presented by the parties rather than simply accept what was not
presented by a separate defendant.
7
 that there had been a formal dedication so the common law of informal

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 Fischer Builder, Inc. v. Magee, 957 S.W.2d 303, 306

(Ky. App. 1997)). In contrast, "dedication by prescription holds that the long

continued use of a highway by the general public rests upon a presumption of

a lost grant, arising from the continuous adverse use of land (with the same

elements of adverse possession)." Nash, 345 S.W.3d at 819 (citing 2 (\merican

Law of Property§ 9.50(c) at 483; Louisville & N.R. Co. v. Engle, 129 S.W.2d 133,

134 (Ky. 1939)). The Court of Appeals here, however, found that dedication by

estoppel required continuous and substantial use by the public for a long
du~ation of time so as to imply intent to dedicate. In addition, the Court of

Appeals held that dedication by prescription required public use that was

continuous, actual, open, and hostile for 15 years and county control for 15

years.

Thus, the issue before this Court raises several clashes among this

Commonwealth's jurisprudence. There are three main issues we must

conclusively decide to bring clarity to the situation: ( l) does informal

dedication, either by prescription or estoppel, of a public road require county

8
control; (2) what is the·_requirement for dedication by estoppel; and (3) does

dedication by prescription require adverse use?

Informal Dedication of a Public Road Does Not Require County Contr~l

According to the Restatement (Third) of Property, a servitude can be

created for the benefit of the public. Restatement (Third) of Property§ 2.18

cmt. d (Am. Law Inst. 2000). These servitudes are created through dedication.

Id. "[D]edication may take place without the participation of any governmental

body Qr other identified party other than the dedicator." Id. Rather than

relying upon any kind of county or government control, "[d]edication requires

an offer by the owner of the land and acceptance by the public." Restatement

(Third) of Property§ 2.18 cmt. e (Am. Law Inst. 2000) (emphasis added).

This Court's predecessor made holdings consistent with 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 of reliance by the public on

appearances created by the landowner." Freeman, 286 S.W.2d at 896

(emphasis added). In Riley v. Buchanan, the Court delved into whether long-

continued use could, on its own, be sufficient to imply acceptance of a

dedication. 76 S.W. at 528-30. "That the public officials ... should have it in

their exclusive power to 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

9
requirements 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 acquire rights of passage

without any involvement from public officials.

However, this principle has been muddied by more recent case law. In

Watson v. Crittenden Cnty. Fiscal Court, the Court of Appeals held that "a

public road may be acquired by prescription only upon (1) fifteen years public

use and (2) a like number of years of control 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 Court held that public

"use, without the exercise of any 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 that we 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 Riley court: an official's refusal to maintain an area

of road should not prevent the public from ever acquiring rights to a passage

that may be necessary for the public's full enjoyment of their town. The

county has its methods for obtaining roads and pathways; the public should

10
also have its own opportunities for obtaining such rights. Thus, we hold that

county control is not necessary to establish a common law public road.

Instead, the question is one of fact: whether the public has acquired and

accepted a dedication by estoppel
, or prescription,
. neither of which must be

proven by county control. County control can be evidence of a public

acceptance; but it 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 that public roads can

be created without proving county control for any period of time. 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 General Assembly has. created formal processes by which county

governments can obtain property rights. Common law still retains powers

through which the public itself can obtain righ~s to passways, without any

interference or involvement from government officials.

Dedication by Estoppel Requires a Promise and Reliance 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 Fischer Builder, Inc., 957 S.W.2d at 306)). "[D]edication by estoppel ...

involves promises and justified contractual reliance thereon." Henry Fischer

Builder, Inc., 957 S.W.2d at 306.

11
 In the case sub ju.dice, the Court of Appeals reversed a finding of a public

road, relying upon Freeman v. Dugger. The Court held that "[a] public road is

dedicated by estoppel when the public continuously and substantially uses 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 Court utilized the language of estoppel, this

description instead refers to the method of prescription by which the public can

obtain property interest 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 by which a plaintiff could prove this promise

and reliance. What may prove dedication by estoppel may also prove

dedication by prescription .. These concepts ·often conflagrate and obfuscate -

however, this Court must remain true to the underlying principles. Here,

dedication by estoppel relies upon the theory of estoppel itself. A promise and

the public's reliance upon that promise estops the landowner from asserting

his private interest rights as dominant to that of the interest created in the

public.

12
Dedication by Prescription Requires Adverse Use

In Nash, this Court stated that "dedication by prescription holds that ·the

long continued use of a highway by the general public rests upon a

presumption of a lost grant, arising from the continuous adverse use of land

(with the same elements of adverse possession)." Nash, 345 S.W.3d at 819

(citing 2 American Law of Property§ 9.50(c) at 483; Engle, 129 S.W.2d at 134)

(emphasis added). This case refersto the lost-grant theory. "Under this

theory, long-continued use or possession can raise a presumption that the

right exercised was previously conveyed to the user or possessor and that the

instrument of conveyance 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 property law "that long-continued use or possession is

evidence of an entitlement created in the past, which evolved into the lost-grant

fiction of English and American law." Restatement (Third) of Property§ 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 of statute-of-limitations and acquisitive-prescription theories." Id.

Rather than requiring fully adverse use,2 under this combination of theories,

2 There are five elements which must be met in order to make a claim of title
through adverse possession: "l) possession must be hostile and under a claim of right,
2) it must be actual, 3) it must be exclusive, 4) it must be continuous, and 5) it must
be open and notorious." Moore v. Stills, 307 S.W.3d 71, 77 (Ky. 2010) (quoting
Appalachian Reg'l Healthcare, Inc. v. Royal Crown Bottljng 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 statutory period of fifteen years, and it is 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 that is 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 requirement under the prescriptive doctrine

offers a simple purpose: "to give the owner of the servient estate ample

opportunity to protect against the establishment of prescriptive rights."

Restatement (Third) of Property§ 2.17 cmt. h (Am. Law Inst. 2000).

Additionally, the continuous element also supports a general principle and

policy: "adverse possession must be .continuous to oust the true owner;

otherwise, the latter's constructive possession reasserts· itself whenever the

disseizor abandons his occupancy even for a short period of time." 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 all the elements of adverse

· 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 of the property for the statutory period of fifteen

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))).
14
previously stated that "[i]n order to establish that the passway had ripened into

a private or a public way, plaintiff must show it was used adversely by him or

his predecessors in title or by the public generally in an open[,] continuous[,]

and uninterrupted manner for 15 years: Rominger v. 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 of adverse possession must

be met to establish a public road through prescriptive dedication.
.
Although the.

modern position on the. requirements for prescriptive acquisition of property
~

rights are persuasive, we also find our Court's jurisprudence compelling.

Finding the language of Nash and Rominger, and this Court's treatment of

adverse possession and prescriptive rights generally indicative, and in an effort

to be consistent with our interpretation oflaw, we hold that the public must

adversely possess the property in question before acquiring an interest in a

public road or passway. Thus, all the elements of adverse possession must be

satisfied before a public road will be considered established.

Our position is stricter than that of the Restatement. However, we

believe this is consistent with this Court's and this Commonwealth's position

on property rights. "[P]rivate property is too sacred and the rights of citizens

are too well guarded under our constitutional form of government 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. Louisville Rolling Mill Co., 66 Ky. 416, 430 (Ky. 1867)). The Court

15
further recognized "that fundamental maxim of a 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 of eminent

domain questions, we recognize the inherent sanctity of property rights within

this Commonwealth. The Kentucky Constitution expressly guarantees "[t]he

right of acquiring and protecting property." KY. Const.§ 1. Thus, we see no

reason to depart from this fundamental belief and create a more lenient

process through which property owners could lose rights to their own privately

held property.

As stated in p·revious law and consistent with our jurisprudence on ·

adverse possession and private easements by prescription, the prescriptive

period is fifteen years and all the elements of adverse possession must be met

for these fifteen years.

Thus, in summary, the general public can obtain property interests

through dedication of pathways 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 not require a set amount of time but instead

involves promises and a distinct reliance thereon, estopping the landowner

from denying the public use of the road. Dedication by prescription requires

adverse use for the statutory period of fifteen years.

Having set forth some clarification on the law surrounding informal

dedication of a public road, we must now assess whether the trial court

16
correctly 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 of fact were clearly erroneous. If they 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 of the 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 and his father's use of the road to get to and from the Crain
farm and to drive cattle on and off the 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 as Tom Warren from the Bath
County Road Department, also testified about the use of
Smokey Hollow Road through the years by buses from the
Bath County School System, well into the property now owned
by the Becraft/ Anderson Defendants:

Based on these facts, the trial court fourid that the road was a public passway.

17
Reversal by the Court of Appeals

On appeal, the Court of Appeals 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 property was controlled and

maintained by Bath County for a period of fifteen years." The Court of Appeals

determined that 'the Ellingtons fai_led to demonstrate that Bath County

continuously for a period of fifteen 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 of a public road by estoppel. The Court of Appeals

determined the evidence presented to the trial court merely sh.owed permissive

use by "adjoining tenants or landowners." The Court of Appeals held that "the

evidence overwhelmingly demonstrates that no passway is physically present

over ... the Becraft property ... capable of providing vehicular access to the .

Ellingtons' property.'~ The Court of Appeals "[did] not believe 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 of Fact Were Not Clearly Erroneous

After our review of the record, we cannot conclude that the trial court's

findings of fact are clearly erroneous. "[S]imple doubt as to the

appropriateness of a finding will not justify its reversal." Sproul, 507 S.W.3d at

18
569 (citing D.G.R.. v. Commonwealth, Cabinet for Health & Family Servs., 364

S.W.3d 106, 114 (Ky. 2012) (internal citations omitted)). Instead, if the

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

of fact are supported by substantial evidence in the record, based on exhibits

and witness testimony. There was no clear error in any of the c_ourt's

interpretations or impressions of witness testimony. There was evidence to

support his findings. It is not an appellate court's position to review facts and

substitute its own determinations for that of the trial court. The trial court is

due deference in its judgment of credibility and role of truth-finding. We must

now, however, determine de novo whether these findings support the legal

conclusion reached by the trial court.

Ellington Failed to Establish Evidence of a Public Road ·

The issue before us is whether, as a matter oflaw, the trial court's

findings of facts are sufficient to establish an implied dedication of this portion

of Smokey Hollow Road to create a public road. As stated, this implied

dedication could be by estoppel, requiring proof of promise and reliance.

Neither the parties nor the trial court in this case made any mention of

promises or reliance and none of the proof presented applied to these legal

concepts.-' As such, the only alternative method of dedication would be by

prescription. Evidence of this dedication can vary. But, as we have stated, the

19
 plaintiffs proof must be sufficient to establish adverse use of the road by the

public for the statutory period of fifteen years ..After careful review of the trial

court's findings and the record, we hold that the evidence presented by the

plaintiff was insufficient to meet this burden.

Adverse possession requires a showing that possession is: (1) hostile

"under a claim of right"; (2) actual; (3) exclusive;3 (4) continµous; and (5) open

and notorious. See Moore, 307 S.W.3d at 77 (quoting Appalachian Reg'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

· of the interest to 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 of law, an actual use by the public. "[O]ne of the essentials of the

establishment of a road by prescription is the use of the land in question by the

public and such use must be by the public generally as a way common to 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 of exclusivity may seem impossible in the context of the
general public, we simply note: 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 may be more difficult to prove in these cases, it is possible for the
general public at large to,' as a group, adversely and exclusively possess rights to a
passage on private property.
20
use as creates title in the public by prescription." Id. Here, every witness

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 of the road in atlases. But we have to

emphasize that the use by the public must be actual and not just theoretical.

The evidence was insufficient to show a use by the general public for the.

proper prescriptive period. The use of this passage was only for the purpose of

reaching the Ellington property; it was hardly a necessary passage for the

community at large. Instead, it was limited to those few members of the public

(rather than the general public at large) using the path to reach the homes

located along what was known as Smokey Hollow Road. This is insufficient as

a matter of law 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 six years, albeit in the 1960s and 1970s. There was no actual

evidence of a 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 nova review of the law, we must hold that the evidence presented, as a

matter of law, was insufficient to establish a public road. Thus, we affirm this

portion of the holding of the Court of Appeals, although on different grounds.

21
 C. EASEMENT BY PRESCRIPTION

The trial court found that Ellington had established a prescriptive

easement over Becraft's property. Likewise, the Court of Appeals held that this

prescriptive easement had been created 1?ut had been abandoned. Once again,

we review the trial court's findings of fact 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:

David Ellington['s family acquired the property] ... in 1954 and
... [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
previously owned the property now owned by the Bailey family
or the property now owned by the Becraft/ Anderson
Defendants ever tried to stop anyone from using that route ...
[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
22
 property now owned by the Bailey family and the property now
owned by the Becraft/ Anderson Defendants, including
Dayton "Doc" Denton, Franklin and Addie Vice and Holman
Stewart.

From these facts, the trial court determined that the use of the road by Ellington

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 of the road in the time periods

discussed. The trial court also found that although Becraft's gate blocked access

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 of Appeals reversed the trial court's findings on this issue as

well, holding that there had been a prescriptive easement but it had been

abandoned. The Court held that "[t]here was sufficient evidence that the

Ellingtons and the Ellingtons' predecessors in title utilized the passway

running through the Becraft property in an actual, open, notorious, and hostile

manner for a period of fifteen years." The Court of Appeals, however, inferred

an intent to abandon from the Ellingtons' "nonuse of the right-of-way for some

six years [and] also by the physical nonexistence of the right-of-way over the

southwestern portion of the Becraft property." The Court held that this

evidenced abandonment of the easement and extinguished any rights. the

Ellingtons had acquired in the passway. Judge Debra Lambert dissented from

23
this portion of the opinion, stating that she would have found the easement

had not been abandoned and wol;l.ld have affirmed the trial court.

The Trial. Court's Findings Were Not Clearly Erroneous

A trial court's "findings of fact are clearly erroneous only if they are

manifestly against the weight of the 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 if they 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 of the trial court's findings and the record before us, we find no clear

error in the trial court's findings of fact. The findings were supported by the

testimony of Ellington, James Reed, and the exhibits presented by both parties.

As such, we· now examine the court's conclusions of law de novo.

Ellington Had a Prescriptive Easement Over the Becraft Property and It
Has Not Been Abandoned

"The right to acquire an easement.by prescription is of ancient 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 of a 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 of fifteen years." Columbia Gas

Transmission Corp., 15 S.W.3d at 730 (citing KRS 4i3.010; Riggs v. Ketner, 187

24
S.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 court found the facts sufficient to establish that these elements

had been met to create a prescriptive easem~nt. The Court of Appeals,

likewise, affirmed this portion of the trial court's order. We now hold that both

courts were correct, and the evidence was sufficient to prove th~t a prescriptive

easement was created for the benefit of Ellington over Becraft's property. The

evidence presented to the court was sufficient to 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 at least fifteen years. Several witnesses testified of Ellington's use

of the passway for moving cattle, without any permission from the landowner.

Additionally, even though Ellington expressed that his use of the

passway was limited to one to two times a year, this is sufficient to 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 of the 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 of an easement rather than adverse

possession. A disseizor by adverse possession can acquire full title to property

whereas the user of a prescriptive easement can only acquire the right to use.

See Lyle v. Holman, 238 S.W.2d 157, 159-160 (Ky. 1951). Thus, while adverse

25
possession looks to meeting the elements through possession, it_ would be more

apt to recognize that a prescriptive easement is created through use of the

passway in the necessary way. Ellington's use here was continuous enough to

meet this element. But, it also leads to the limitation of this particular

property interest.

"[A]n easement is property of the nature of the land, it is an incorporeal

right .... When acquired by prescription it may be conditional and restricted

according to the use and purpose of its 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 of limitation has passed." Id. This Court's

predecessor has cited that use of a path as a fire exit can ripen into a

prescriptive easement for the purpose of being a fire exit. Id. at 159-60 (citing

Ben Snyder, Inc. v. Phoenix Amusement Co., 218 S.W.2d 62, 64 (Ky. 1949)).

Thus, an easement must be "defined in conformity with.the nature of its 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 only ingress
.
and
.
egress. The path was never paved or

constructed for other purposes and we see no facts discerning the necessity for

expanding the use of the ~asement further than Ellington's prior use.

The Court of Appeals held that Ellington's non-use of the easement after

Becraft erected a gate in 2004 was sufficient to evidence abandonment of the

easement. However, this holding is contrary to the law. "[A]n easement

26
acquired by prescription may be extinguished by a nonuser under

circumstances indicating an intention of abandonment whenever such nonuser

has extended over that period of time sufficient to 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 here is

fifteen years; thus, non-use of the easement could only establish an iritent to

abandon after fifteen years of non-use. In this aspect, the Court of Appeals

majority opinion was flawed .and we reverse its holding.

We find Becraft's evidence of the non-use of the passway compelling; the

photographic evidence clearly shows an overgrown and vegetated path.

However, this Court is not in a position to undermine findings of fact by the

trial court or supplement its own judgment where evidence is lacking. Becraft

did not present sufficient evidence to show non-use for the required fifteen

years in order to prove abandonment of this easement. As such, we must

reverse the Court of Appeals and reinstate the prder of the trial court holding

that Ellington has acquired a prescriptive easement over the portion of Smokey

Hollow Road across Becraft's property.

IV. CONCLUSION

After careful review of the law, the trial court's order, and the law of our

Court, we make several general holdings today. First, a county road can be

established only through formal action of the county. Second, a public road

can be established by informal dedication through estoppel or prescription

27
without any action of county officials. Dedication by estoppel requires a

promise and reliance thereon while prescriptive dedication requires adverse use

by the public for the statutory period. To this case specifically, we hold that·

the evidence was insufficient to find a county road or public road. On those

issues, we affirm the Court of Appeals, although for different reasons. We hold,

however, that the evidence was sufficient to find a prescriptive easement and

that said easement had not been abandoned for.the requisite statutory period.

On this issue, we reverse the Court of Appeals and reinstate the order of the

trial court.

All sitting. Minton, Hughes, Keller, VanMeter and Venters, JJ., concur.

Cunningham and Wright, JJ., concur in result only without opinion.

28
COUNSEL FOR APPELLANTS:

Stephen Edward Neal
White, Peck, Carrington, LLP

COUNSEL FOR APPELLEE, HARLAN RANDALL BECRAFT:

Leah Nell Hawkins

COUNSEL FOR APPELLEE, BATH COUNTY, KENTUCKY:

Kimberly SH Price
. .
COUNSEL FOR APPELLEE, UNKNOWN HEIRS OF EWELL GORDON BAILEY:

Julie Diane S Williamson
Hughes Letcher Williamson PSC

COUNSEL FOR APPELLEE, DONNA MICHELE BECRAFT:

Donna Michele Becraft, Pro Se

COUNSEL FOR APPELLEE, HENRY LEROY ANDERSON:

Henry Leroy Anderson, Pro Se

COUNSEL FOR APPELLEE, BONNIE B. ANDERSON:

Bonnie B. Anderson, Pro Se

COUNSEL FOR APPELLEE, BRITNEY BAILEY:

Britney Bailey, Pro Se

COUNSEL FOR APPELLEE, DUSTIN BAILEY:

Dustin Bailey, Pro Se

COUNSEL FOR APPELLEE, ELEANOR W. BAILEY:.

Eleanor W. Bailey, Pro Se

COUNSEL FOR APPELLEE, KAREN BAILEY HART:

Karen Bailey Hart, Pro Se

29
COUNSEL FOR APPELLEE, DANNY HART:

Danny Hart, Pro Se

COUNSEL FOR APPELLEE, ADDISON BAILEY:

Addison Bailey, Pro Se

COUNSEL FOR APPELLEE, LESLIE SPARKS:

Leslie Sparks, Pro Se

30