REAL PROPERTY:  Easements, encroachments,  and punitive damages
DATE RENDERED: 1/12/2007

The McConnels appealed from a judgment which (1) required them to remove structures encroaching upon a tract of property owned by  Stivers et al. and (2) determined that they do not have an easement by implication to use a driveway running between the  properties.

For the reasons stated below, COA affirmed upon the issues raised by the McConnells in Appeal No. 2004-CA-001835-MR, and reverse upon the issue raised by Norris/Stivers in Cross-Appeal No. 2004-CA-001894-MR.

Under Kentucky law, the doctrine of election of remedies “means that when a person has at his disposal two modes of redress, which are contradictory and inconsistent with each other, his deliberate and settled choice and pursuit of one will preclude his later choice and pursuit of the other.”

There is an abundance of evidence supporting the trial court’s finding. The court noted that at the time of the initial fence construction Norris/Stivers made an effort to
determine what survey the McConnells were relying upon in placing the fence. The McConnells were clearly on notice that there was a boundary dispute.

In a situation involving innocent or negligent trespass resulting in encroachment, the dominant approach . . . is to balance the relative hardships and equities and to grant or deny the injunction as the balance may seem to indicate.  If the injunction is denied, the plaintiff is left with defendant’s encroaching structure partly on his land and he will be entitled to damages in lieu of the injunction. If the hardship of removal is not too great, a mandatory injunction will issue to require removal, leaving the plaintiff in complete possession.

In cases of intentional, willful, or reckless encroachment, the rule is that no one should be permitted to take land of another merely because he is willing to pay a market price for it. This would amount to a private eminent domain; no one should be permitted to accomplish this indirectly by intentionally trespassing with the hope that he would be permitted to remain on the land because of the hardship or cost of removing the structure.  The defendant who intentionally or recklessly builds his structure partly on the
plaintiff’s land will be compelled to remove it, even at great cost, to avoid giving him a right of private eminent domain.

It may generally be said that, in absence of extraordinary circumstances, an encroachment placed upon a neighbor’s land as a result of willful, intentional, or reckless trespass is subject to an order of removal without a balancing of the equities.

The McConnells allege that they obtained a right to use the driveway as an easement by implication, a type of easement also referred to as a quasi-easement.  A quasi-easement is based on the rule that "where the owner of an entire tract of land or of two or more adjoining parcels employs one part so that another derives from it a benefit of continuous, permanent and apparent nature, and reasonably necessary to the enjoyment of the quasi-dominant portion, then upon a severance of the ownership a grant or reservation of the right to continue such use arises by implication of law."

The jury determined that the factors required to establish an easement by implication were not met, and the COA was not persuaded that the punitive damage award made by the jury in this case did not violate due process and accordingly reverse the trial court’s reduction of the jury award and remand for reinstatement of the jury verdict.

Digested by Michael Stevens


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