RENDERED: JUNE 25, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0197-MR
SCOTTY HEDGESPETH AND LINDA
CUNDIFF APPELLANTS
APPEAL FROM TAYLOR CIRCUIT COURT
v. HONORABLE ALLAN RAY BERTRAM, JUDGE
ACTION NO. 15-CI-00178
TAYLOR COUNTY FISCAL COURT
MEMBERS, IN THEIR OFFICIAL
CAPACITIES: COUNTY/JUDGE
EXECUTIVE EDDIE ROGERS,
MAGISTRATE ED GORIN,
MAGISTRATE JAMES JONES,
MAGISTRATE JOHN GAINS,
MAGISTRATE MATT PENDLETON,
MAGISTRATE RICHARD PHILLIPS,
MAGISTRATE TOMMY CORBIN;
ANTHONY HASH; JOHN
HEDGESPETH; MARILYN ALTMAN;
RAY ALTMAN; RAY ALTMAN, JR.;
AND VANGIE ALTMAN APPELLEES
OPINION
AFFIRMING
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BEFORE: COMBS, KRAMER, AND K. THOMPSON, JUDGES.
COMBS, JUDGE: This case involves a land dispute arising from the proposed
construction of a new bridge in Taylor County. Scotty Hedgespeth and Linda
Cundiff, his wife, appeal a summary judgment of the Taylor Circuit Court entered
in favor of neighboring landowners and the Taylor County Fiscal Court. The
circuit court held: that Taylor County did not take property owned by Hedgespeth
and Cundiff in its construction of a new bridge across Jones Creek; that the new
bridge lies within a county road boundary; and that the neighboring landowners
and the fiscal court were entitled to judgment as a matter of law. After our review,
we affirm.
Hedgespeth and Cundiff own property at what is known as Jones
Creek Road in Taylor County. At the time this litigation commenced, the road at
issue proceeded northward from KY 1252 (White Rose Road) until it reached
Jones Creek, where it forked. The western fork crossed a narrow, awkwardly
situated bridge. Vehicles often avoided the narrow bridge by using the earlier
established eastern fork, which crossed the usually shallow creek through the
stream bed. A concrete slab had been poured on the north bank of the creek to
facilitate access back onto the paved roadway as it continued northward.
On June 26, 2015, Hedgespeth and Cundiff filed an action to quiet
title against the Taylor County Fiscal Court and its individual members in their
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official capacities. In their verified complaint, Hedgespeth and Cundiff alleged
that Jones Creek Road in Taylor County and nearby property that the county
sought to use for construction of the new bridge across Jones Creek (the alternate
route through the creek bed) were their unencumbered property. They stated that
the portion of the roadway that had originally forded Jones Creek had been
abandoned following the grading and graveling of a new path along the western
bank of the creek in the mid-1950’s. They explained that the new path along the
bank of the creek had been paved in the late-1970’s and that Hedgespeth’s
predecessor in title, his late father, had given landowners farther north of KY 1252
permission to use the road in order to access their property.
Hedgespeth and Cundiff also sought a declaratory judgment indicating
that the fiscal court could acquire an ownership interest in the disputed property
only by way of Kentucky’s Eminent Domain Act, codified at KRS1 416.540, et
seq. Finally, pursuant to the provisions of CR2 65.04, Hedgespeth and Cundiff
requested the trial court to issue a temporary injunction to stop construction of the
new bridge pending a determination of the ownership of the land where the bridge
would be built.
1
Kentucky Revised Statutes.
2
Kentucky Rules of Civil Procedure.
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The Taylor County Fiscal Court filed a timely answer. It averred that
Jones Creek Road had been listed as a county road and that it had been treated as
such by the public at large and by the county for decades, encompassing both the
narrow bridge over Jones Creek (including its paved approaches) and the alternate
public thoroughfare crossing the streambed of Jones Creek. It also alleged that
Jones Creek Road had been used by the public as a matter of right, “including the
dual path traversing directly through the creek and on the paved portion of the
roadway across the present bridge” for more than fifty years. The fiscal court
indicated that it had undertaken all measures to replace the existing bridge over
Jones Creek with a bridge spanning the stream where vehicular traffic had
previously crossed directly through the creek bed. It denied that Hedgespeth and
Cundiff had any authority to delay or impede the fiscal court in its duty to improve
Jones Creek Road, and it objected to their motion to enjoin construction of the new
bridge.
On August 7, 2015, the Taylor Circuit Court conducted a day-long
evidentiary hearing on the motion for a temporary injunction. In an order entered
on August 25, 2015, it denied the motion. Hedgespeth and Cundiff immediately
filed a motion in this Court for interlocutory relief pursuant to the provisions of CR
65.07. In an order entered October 7, 2015, we denied the motion for relief,
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holding that the trial court had not abused its discretion by refusing to enjoin the
proposed bridge construction.
Hedgespeth and Cundiff immediately sought interlocutory relief from
our order in the Supreme Court of Kentucky pursuant to the provisions of CR
65.09. In an order entered on May 5, 2016, the Supreme Court also denied their
motion.
The Supreme Court reiterated the standard governing a trial court’s
review of a motion for temporary injunction as prescribed by the provisions of CR
65.04. A trial court can order injunctive relief only where it finds:
(1) that the movant’s position presents “a substantial
question” on the underlying merits of the case . . .; (2)
that the movant’s remedy will be irreparably impaired
absent the extraordinary relief; and (3) that an injunction
will not be inequitable[.]
Price v. Paintsville Tourism Comm’n, 261 S.W.3d 482, 484 (Ky. 2008).
Evaluating the evidence presented to the trial court during the
injunction hearing, the Supreme Court held that the deeds and maps admitted as
exhibits to testimony “strongly supported a finding that Jones Creek Road was
publicly used, as opposed to being a private road surrounded by private property.”
It observed that the evidence showed that the fiscal court “had previously treated
both forks as part of the county road” and that it had maintained them both. It
determined that the trial court’s conclusion that Hedgespeth and Cundiff had not
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shown a substantial likelihood of prevailing on the underlying merits was not
clearly erroneous and that this court had not erred in its review of that conclusion.
Next, the Supreme Court evaluated the trial court’s conclusion that
Hedgespeth and Cundiff had not shown that they would suffer irreparable harm if
an injunction did not issue. The Court noted that there had been testimony that
vehicular traffic already used the bypass through the creek bed to avoid using the
old bridge and that construction of a new, safer bridge at the same location would
not result in a change to the way the property was then being used. Additionally,
the trial court concluded that if the road in question is determined to be private
property rather than a county or public road, then Hedgespeth and Cundiff could be
adequately compensated for the taking through the recovery of monetary damages.
The Supreme Court agreed that intrusion onto property found to
belong to Hedgespeth and Cundiff by agents of the Taylor County Fiscal Court
could, indeed, be redressed through an action for damages. Consequently, there
could be no irreparable injury. Finally, the Court determined that the equities did
not weigh in favor of Hedgespeth and Cundiff but rather in favor of public safety
and construction of the new bridge. The Supreme Court (Venters and Noble, J.J.
dissenting) affirmed this Court’s decision denying the request for interlocutory
relief. The bridge was built, and discovery in the underlying action followed.
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In May 2018, the circuit court rendered a scheduling order. The
matter was set for trial in August 2018. The parties exchanged witness and exhibit
lists. The fiscal court identified the ownership of the property underlying the
newly constructed bridge as the sole issue of fact to be decided at trial. If it were
found that a taking had occurred, only then would the additional issue of damages
need to be addressed.
On July 2, 2018, Ray Altman, Marilyn Altman, Ray Altman Jr.,
Vangie Altman, John Hedgespeth, and Anthony Hash -- neighboring landowners --
filed a motion to intervene and tendered an intervening complaint. In their motion,
the neighboring landowners contended that access to their property was dependent
upon the public nature of the disputed roadway. In the alternative, they alleged
that they had acquired “a prescriptive right of ingress and egress by Jones Creek
Road.” The trial court granted the motion and ordered the intervening complaint
filed. The jury trial was re-scheduled for July 2019.
On May 31, 2019, the neighboring landowners filed a motion for
partial summary judgment. The motion was accompanied by an extensive
memorandum of law and the affidavits of numerous former county judge-
executives, magistrates, landowners, and county road maintenance employees.
Various deeds of conveyance and maps were attached as exhibits.
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In their motion, the neighboring landowners argued that they were
entitled to judgment as a matter of law because Jones Creek Road is either a county
road or a public road. In the alternative, they contended that they had acquired
prescriptive easements and a right to use the road. They denied that the road had
ever been blocked or that they had sought or been given permission to use either
fork of the road by any other neighboring landowner.
In their response, Hedgespeth and Cundiff conceded that there had
been a county road “referred to as Jones Creek or Jones [R]oad in the history of
this area.” However, they argued that “the part of the right of way that is the
subject of this action is not, in fact, the same road which has been historically
mentioned.” They argued that this genuine issue of material fact precluded entry
of summary judgment. CR 56.
The affidavit of Scotty Hedgespeth was attached to the response. He
declared that the entire south section of the roadway (both forks) referred to as
Jones Creek Road had been abandoned years ago and that the property should have
reverted to adjacent landowners. While he admitted that the southern portion of
the roadway “was in and out of the creek bed,” he indicated that the road had not
been maintained with public funds. Hedgespeth explained that only the northern
portion of the roadway had been maintained with public funds and that this was the
county road referred to in the relevant deeds.
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Following extensive oral arguments, the circuit court granted
summary judgment on January 16, 2020. The court observed that the fiscal court
identified and adopted a comprehensive list of its county roads in June 1991.
Included in the list of county roads and the officially adopted and published county
road map was Jones Creek Road, running from its intersection with White Rose
Road in a northly direction for a distance of 1.05 miles. The county road then
included both its path through the creek (the site of the new bridge) and a second
path over the old bridge. Numerous affidavits indicated that Jones Creek Road had
-- in fact -- been maintained with public funds for decades. The court observed
that Hedgespeth and Cundiff had submitted no evidence to support their claim of
ownership of any part of the road, and it rejected the premise that the “northern”
section of the roadway “if indeed it existed at one time” was relevant to the action.
The court determined that “Jones Creek Road is a county road with a location that
begins at White Rose Road and continues for a distance of 1.05 miles, to cross the
creek at the location of the newly installed bridge” and that no property owned by
Hedgespeth and Cundiff had been taken for the construction of the bridge.
Because there were no genuine issues of material fact, it concluded that the fiscal
court and the neighboring landowners were entitled to judgment as a matter of law.
This appeal followed.
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A motion for summary judgment should be granted only where “the
pleadings, depositions, answers to interrogatories, stipulations, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of
law.” CR 56.03. Summary judgment is appropriate where the movant shows that
the adverse party could not prevail under any circumstance. Pearson ex rel. Trent
v. Nat’l Feeding Sys., Inc., 90 S.W.3d 46 (Ky. 2002). We review the trial court’s
decision to grant summary judgment de novo. Caniff v. CSX Transp., Inc., 438
S.W.3d 368, 372 (Ky. 2014).
We must consider whether the circuit court erred by concluding that
there were no genuine issues as to any material fact and that the fiscal court and the
neighboring landowners were entitled to judgment as a matter of law.
On appeal, Hedgespeth and Cundiff argue that the circuit court erred
by granting summary judgment in favor of the fiscal court and the neighboring
landowners because the southern portion of what is commonly referred to as Jones
Creek Road (including the location of the new bridge) is not the county road
referred to in deeds, maps, and the other documents presented. Instead, they claim
that the public portion of the road lies well north of the newly constructed bridge
and that it does not encompass the private passways that cross their land or that
deed references to a county road refer to KY 1252.
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In the alternative, they argue that if the county acquired a legally
enforceable easement, the court erred by assuming that the easement could be
enlarged to accommodate the new bridge because it increases the burden upon
their property. Finally, Hedgespeth and Cundiff argue that the trial court erred by
dismissing the entire action because the only motion before the court was one for
partial summary judgment filed by the neighboring landowners. They contend
that the trial court was obligated to consider their claim for damages as a result of
the taking because the fiscal court did not file a dispositive motion with respect to
their reverse condemnation claim. We disagree with these contentions.
The issues on appeal are resolved by a single analysis: whether the
circuit court erred by concluding that no genuine issue of material fact existed with
respect to whether the property underlying the new bridge was a county road. If it
did not, there was no taking and the fiscal court and the neighboring landowners
are entitled to judgment as a matter of law. We conclude that the court did not err
by concluding that the property underlying the new bridge was a county road.
The arguments presented by Hedgespeth and Cundiff with respect to
the disputed roadway have metamorphosed somewhat over the course of these
proceedings. In their complaint, Hedgespeth and Cundiff indicated that the portion
of the original roadway that traversed the creek bed had been abandoned following
the creation of a new passway along the western bank of the creek. However, after
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their motion for an injunction was denied and that decision was affirmed on
review, Hedgespeth and Cundiff argued that the southern portion of the roadway
(including the location of the new bridge) is not the Jones Creek Road referred to
in deeds, maps, and other documents. Nevertheless, no genuine issue of material
fact prevents the entry of summary judgment.
All evidence indicates that Jones Creek Road, including the passway
through the creek, has been continuously listed on the county road map since 1991,
reflecting that it was adopted by the fiscal court as a county road at least as of that
year. The evidence is uncontroverted (except by the unsupported allegations of the
Appellants) that the county has maintained the road since that time. It is also
uncontroverted that the alleged “northern” section of Jones Creek Road lies outside
the mapped area; that it is unrecognizable as a roadway; and that it has never been
maintained or claimed by the county. Moreover, it is irrelevant to the controversy
concerning ownership of the “southern” portion of the roadway at the center of this
litigation. Affidavits indicating that Hedgespeth’s predecessor in title
acknowledged that Jones Creek Road was a county road are also uncontroverted,
and relevant deeds all reference the “county road” as an established landmark.
Finally, the single deed offered by Hedgespeth and Cundiff as proof of their
ownership of the disputed property was acquired by them after commencement of
the litigation.
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A movant bears the initial burden of convincing the court through
evidence of record that no genuine issue of fact is in dispute. The burden then
shifts to the party opposing summary judgment to present at least some affirmative
evidence showing that there is a genuine issue of fact to be resolved at trial. City
of Florence v. Chipman, 38 S.W.3d 387, 390 (Ky. 2001). “[S]peculation and
supposition are insufficient to justify a submission of a case to the jury[.]”
O’Bryan v. Cave, 202 S.W.3d 585, 588 (Ky. 2006) (quoting Chesapeake & Ohio
Ry. Co. v. Yates, 239 S.W.2d 953, 955 (Ky. 1951)).
The neighboring landowners and the fiscal court met their burden of
showing that no genuine issue of material fact had been presented. In response,
Hedgespeth and Cundiff failed to produce any evidence -- except speculation --
upon which a trier-of-fact might reasonably find in their favor. Consequently, the
trial court did not err by granting summary judgment.
We AFFIRM the entry of summary judgment by the Taylor Circuit
Court.
ALL CONCUR.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEES RAY
ALTMAN, MARILYN ALTMAN,
Dawn L. McCauley RAY ALTMAN, JR., VANGIE
Lebanon, Kentucky ALTMAN, JOHN HEDGESPETH
AND ANTHONY HASH:
Craig Cox
Campbellsville, Kentucky
BRIEF FOR APPELLEE TAYLOR
COUNTY FISCAL COURT:
John D. Bertram
Campbellsville, Kentucky
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