Background
Robert and Jeanne Alexander own a 7.343-acre tract in McCracken County, Kentucky, near Interstate 24. The parcel was originally part of a larger 73.6-acre tract owned by Mary Frances and Walter Gilliam, which was subdivided beginning in 1981. The Alexanders acquired their tract in 2017 through a chain of title running from the original Gilliam family. Neighbors Terry and Barbara Gilliam, through their irrevocable trust, own an adjacent tract to the south across which a passway had historically been used for access.
When the Gilliams blocked the passway around 2018, the Alexanders sued in McCracken Circuit Court seeking a declaration of permanent easement rights — either by necessity or by prescription. The circuit court granted summary judgment to the Gilliams on the easement-by-necessity claim and, after a December 2024 trial, directed a verdict for the Gilliams on the prescriptive easement claim. The Alexanders appealed both rulings.
At trial, the Alexanders presented testimony from Robert Alexander (who used the passway for roughly six to seven months in 2017 before it was blocked), a former tenant who rented the property from 1989 to 1991 and assumed he had implied permission, and Kelsie Don Travis, a prior co-owner and the Gilliams’ brother-in-law, who used the passway from the 1960s through 1991 largely to perform improvements for the Gilliam family.
The Court’s Holding
The Court of Appeals affirmed on all grounds. On the easement-by-necessity claim, the court held that the necessity element was not satisfied because the Alexanders own a separate tract adjoining the northern boundary of the 7.343-acre parcel, providing an existing means of access to a public road. Under Kentucky law, an easement by necessity does not arise — and an existing one terminates — when the dominant estate owner has any other means of access, however inconvenient. The Alexanders’ preference for the southern passway because of its convenience to their auction business was legally insufficient.
On the prescriptive easement claim, the court held there was a complete absence of clear and convincing evidence of hostile use for the required fifteen-year statutory period. Travis testified he used the passway with implied permission as a member of the Gilliam family; his tenant Dean likewise assumed permission because his landlord was the Gilliams’ brother-in-law. Permissive use — express or implied — cannot ripen into a prescriptive easement regardless of its duration. Even crediting the most favorable view of the evidence, the Alexanders could demonstrate at most a few years of arguably hostile use in 1981–1991, with no evidence of any use from 1991 to 2017, falling far short of fifteen continuous years.
The court also refused to consider the Alexanders’ quasi-easement argument raised for the first time on appeal, applying the settled preservation rule that an appellant cannot advance a legal theory never presented to the trial court.
Key Takeaways
- An easement by necessity fails — or is extinguished — whenever the dominant estate owner has any alternative access route to a public road, even if that route is inconvenient or less commercially practical.
- Use of a passway with actual or implied permission of the servient estate owner, no matter how long continued, cannot establish a prescriptive easement; family relationships and reasonable assumptions of permission are fatal to the hostility element.
- The fifteen-year prescriptive period must be proven by clear and convincing evidence of continuous hostile use; gaps in the evidence (here, no proof of any use from 1991 to 2017) break the chain and defeat the claim.
- Legal theories not raised before the trial court — including quasi-easement — are waived and will not be considered on appeal in Kentucky.
Why It Matters
This decision reinforces Kentucky’s strict approach to implied easement claims. For practitioners, it underscores that landowners seeking an easement by necessity must confirm at the outset that no alternative access exists — ownership of any adjoining property with road access, however awkward, will defeat the claim. The decision is also a reminder that informal, family-connected use of a neighbor’s land, even over decades, accumulates no prescriptive rights when the circumstances suggest permission rather than adversity.
The case is designated not to be published and therefore carries no precedential weight in Kentucky, but it illustrates how courts apply Carroll v. Meredith and Columbia Gas Transmission Corp. v. Consol of Kentucky to deny easement claims where permissive use or alternative access breaks the required elements of proof.