203 Ky. 702 | Ky. Ct. App. | 1924
Opinion of the Court by
Affirming.
This is an appeal from a judgment sustaining appellee’s right to use a passway leading from his land over the land of appellant to the public .road.
It is rare that the evidence in support of a claim to a passway is as clear and convincing as that presented in this case. Though the record is silent as to when and under what circumstances John Whalen began to use the passway -in question, the evidence is uncontradicted that he and his children used the passway continuously and without let or hindrance for over forty years. This of itself was sufficient to raise the presumption that the use was under a claim of right, and to impose on appellant the burden of showing that the use was merely permissive. Smith v. Oliver, 189 Ky. 214, 224 S. W. 683. Not only were the circumstances relied on by appellant to show that the use was permissive wholly insufficient, biit the direct evidence on the question shows beyond all doubt that the Lantrys, who -owned the servient estate, always conceded the right of the Whalens to the use of the passway. After appellee acquired the land to which the passway is appurtenant, he also used it without let or hindrance until the bringing of this action. We therefore conclude that the evidence was sufficient to show a prescriptive right to the passway unless its effect was overcome by the circumstance next to be considered.
The deed by which appellant acquired title from Patrick Lantry in 1904 contained the following- provision: “There is also excepted a passway where it now is for the use and benefit of Anna Whalen and Joe Whalen during their natural life,” and it is'insisted that this provision estopped the Whalens from claiming any greater right than that contained in the deed. Whether the deed
Judgment affirmed.