RENDERED: AUGUST 21, 2026; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2025-CA-0295-MR
AP & DP, LLC APPELLANT
APPEAL FROM SPENCER CIRCUIT COURT
v. HONORABLE MELANIE BRUMMER, JUDGE
ACTION NO. 24-CI-00045
ANDY DENDINGER; KASEY
DENDINGER; AND R&B FARMS,
LLC APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, L. JONES, AND TAYLOR, JUDGES.
JONES, L., JUDGE: AP & DP, LLC1 (Appellant) brings this appeal from a
February 20, 2025 Opinion and Order of the Spencer Circuit Court granting
1
AP & DP, LLC is a registered limited liability company organized under the laws of the Commonwealth of Kentucky. The members of AP & DP, LLC are Douglas W. Peters and Andrew W. Peters.
summary judgment in favor of Andy Dendinger and Kasey Dendinger
(Dendingers) and R&B Farms, LLC (R&B Farms). We affirm.
On July 27, 2017, Appellant purchased a 32.08-acre tract of land
located on Taylorsville Lake in Spencer County, Kentucky. Appellant purchased
the property at auction which had been advertised as: “Frontage along Corp of
Engineer base flood elevation for Taylorsville Lake!” and “Sold ‘As-Is Where-Is’
to highest bidder!” Trial Record (R.) at 42. Also included in the advertisement for
auction was a map prepared by the Property Valuation Administrator that clearly
depicted the 32.08-acre tract as landlocked. There are no public roads, private
roads, or waterways connected to the property. The 32.08-acre tract is bound on
all sides by the following three properties: (1) property owned by R&B Farms
located at 574 Cull Road; (2) property owned by the Dendingers located at 573
Cull Road; and (3) property owned by the United States of America Army Corps
of Engineers (Army Corps). The Army Corps property is located directly on the
lake and lies between the 32.08-acre tract and the lake, thus preventing direct
access to the tract from the water.
A few months after Appellant purchased the property, Douglas W.
Peters (Douglas) wrote a letter to the Dendingers. In the letter, Douglas
acknowledged knowing the property was landlocked when the purchase was made.
Douglas proposed purchasing an easement across the Dendingers’ property for
-2-ingress and egress to the 32.08-acre tract, or, in the alternative, selling the entire
32.08-acre tract to the Dendingers. R. at 126. The Dendingers responded they
were not interested in either option presented by Douglas.
Some seven years after purchasing the 32.08-acre tract, Appellant
filed a Complaint in the Spencer Circuit Court against, inter alios, R&B Farms and
the Dendingers (collectively referred to as Appellees). In the Complaint filed on
March 8, 2024, Appellant sought a declaration of rights granting it an easement by
necessity through the adjacent properties owned by Appellees located at 574 and
573 Cull Road. R&B Farms filed a Motion to Dismiss pursuant to CR2 12.02 and
asserted Appellant had failed to state a claim upon which relief may be granted.
More particularly, R&B Farms noted Appellant’s only claim was for an easement
by necessity which fails as a matter of law as there is no unity of ownership
between the dominant and servient estates. The Dendingers subsequently filed a
Motion to Dismiss and incorporated by reference the Motion to Dismiss filed by
R&B Farms.
Appellant responded to the Motions to Dismiss and also filed a CrossMotion for Summary Judgment. Therein, Appellant acknowledged there was no
unity of title between Appellant’s property and Appellees’ properties, and the
properties had not been severed from the same tract. Nevertheless, Appellant
2
Kentucky Rules of Civil Procedure.
-3-sought a declaration of rights for an easement by necessity based upon public
policy favoring the beneficial use of land.
By Opinion and Order entered February 20, 2025, the circuit court
denied Appellant’s Motion for Summary Judgment and granted Appellees’
Motions to Dismiss which were converted to Motions for Summary Judgment as
matters outside the pleadings were considered. CR 12.03; see Harrodsburg Indus.
Warehousing, Inc. v. MIGS, LLC, 182 S.W.3d 529, 533 (Ky. App. 2005) (holding
that “[w]here matters outside the pleadings are considered on a motion to dismiss
for failure to state a claim, the motion must be treated as one for summary
judgment”).
The February 20, 2025 Opinion and Order granting summary
judgment in favor of Appellees provided:
The three prongs of an easement by necessity are
defined in Carroll v. Meredith, 59 S.W.3d 484 (Ky. []
App. 2001). Under the current Kentucky case law, a
claim for an easement of necessity fails when it cannot
establish unity of ownership of the dominant and servient
estates.
In the instant case, [Appellant] concedes that there
is no unity of ownership between the dominant and
servient estates, as the servient estate is presently
underwater. The Army Corps[] of Engineers in
establishing Taylorsville Lake in Spencer County,
Kentucky, took possession of real estate in the area used
to construct the lake and real estate surrounding the lake
project, through eminent domain. . . . [Appellant] asserts
that accessing their real property via Taylorsville Lake
-4-and then USA/Army Corps[] property/real estate, is
trespassing, and they do not have the legal right to
traverse this property. The property is landlocked, and
[Appellant’s] members knew this at the time of purchase.
In the final analysis, [Appellant] now seeks access
to their landlocked property by establishing an easement
by necessity through the land of another. They have
accessed the property to date by the nearby lakeshore and
then transversing USA/Army Corps[] of Engineer
property without incident (no evidence in the record to
the contrary). Although Kentucky public policy favors
[Appellant] to be able to access and utilize this real
estate, the Court is unwilling to deviate from the doctrine
of stare decisis under these circumstances, due to
Kentucky public policy concerns.
R. at 195-96. This appeal follows.
Summary judgment is governed by CR 56.03 which provides
summary judgment is appropriate where there exists no genuine issue of material
fact and the moving party is therefore entitled to judgment as a matter of law. In
other words, summary judgment may be granted when “as a matter of law, it
appears that it would be impossible for the respondent to produce evidence at the
trial warranting a judgment in his favor and against the movant.” Steelvest, Inc. v.
Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 483 (Ky. 1991) (internal quotation
marks and citation omitted). A “circuit court’s decision to grant summary
judgment is reviewed de novo.” Carroll v. Carroll, 355 S.W.3d 463, 466 (Ky.
App. 2011). And, a party opposing summary judgment must present affirmative
evidence to defeat a properly supported motion for summary judgment. Id. at 469.
-5-Appellant contends the circuit court erred by granting summary
judgment in favor of Appellees thereby denying Appellant an easement by
necessity across Appellees’ property. Essentially, Appellant acknowledges it
cannot meet the requirements of an easement by necessity but urges this Court, as a
matter of public policy, to grant such an easement.
It is well settled that “[a]n easement by necessity is based primarily on
the policy favoring beneficial use of property.” Gosney v. Glenn, 163 S.W.3d 894,
900 (Ky. App. 2005) (citations omitted). There are, however, three prerequisites to
the creation of an easement by necessity: “(1) unity of ownership of the dominant
and servient estates; (2) severance of the unity of title by a conveyance of one of
the tracts; and (3) necessity of the use of the servient estate at the time of the
division and ownership to provide access to the dominant estate.” Id. (citations
omitted). As to the third prerequisite, the necessity of access “has generally been
defined as absolute necessity such as where property is landlocked or otherwise
inaccessible.” Meredith, 59 S.W.3d at 491 (citations omitted). Furthermore,
“[e]asements are not favored, and the party claiming the right to an easement bears
the burden of establishing all the requirements for recognizing the
easement.” Gosney, 163 S.W.3d at 899 (citations omitted).
In the case sub judice, it is undisputed that Appellant’s property is
landlocked. It is further undisputed that the property has neither unity of title nor
-6-ownership with the properties owned by Appellees. More particularly, Appellant
concedes the 32.08-acre tract was “severed from an entirely separate tract” and that
“the tract to which [Appellant’s] property belonged and was severed from is now
completely underwater. Thus, there is no servient estate from which [Appellant]
can seek an easement by necessity, it is an impossibility.” Appellant’s Brief at 7.
Appellant concedes the prerequisites to establishing an easement by necessity
cannot be satisfied. Nevertheless, Appellant asserts that if Kentucky precedent
were followed Appellant would have no remedy and the landlocked property
would be rendered useless. Therefore, Appellant believes an easement by
necessity based upon public policy favoring beneficial use of land should prevail
regardless of precedent.
While we agree public policy favors the beneficial use of land, the law
of this Commonwealth is clear that a prerequisite to the creation of an easement by
necessity is unity of ownership of the dominant and servient estates. See Gosney,
163 S.W.3d at 900. Here, it is undisputed there was no unity of ownership. In
fact, not only does Appellant acknowledge there is no unity of ownership between
the tracts, Appellant admittedly possessed knowledge of the landlocked status of
the property at the time of purchase. Although we are cognizant of the precarious
situation Appellant finds itself in, we are constrained to follow the well-established
precedent of this Commonwealth regarding the prerequisites for establishing an
-7-easement by necessity. As there is no unity of ownership, the circuit court
properly denied Appellant an easement by necessity across Appellees’ properties.
We view any remaining contentions of error as moot or without merit.
For the foregoing reasons, we affirm the February 20, 2025 Opinion
and Order of the Spencer Circuit Court granting summary judgment in favor of
Appellees.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
Molly Robertson Arneson Corey M. Thomas
Jessica D. Smith Cheryl R. Winn
Louisville, Kentucky Louisville, Kentucky
-8-