53 S.W.2d 698 | Ky. Ct. App. | 1932
Affirming.
The appellee, W.E. Hensley, has been adjudged to have a passway by prescription over land of the appellant, Mrs. Mary E. Casey, and she has been enjoined from interfering with its use. A reversal of the judgment is sought upon the ground that the evidence was not sufficient to show that the continued use of the roadway was under a claim of right with notice thereof to the owner of the servient estate and to show that it was not a permissive use.
The evidence goes back to 1895, or 36 years before an attempt was made by the defendant to bar the use of the passway. It was then that Hensley moved onto his farm, which is back of the Casey place. That place was then owned by Owen Connor, and passed successively to his heirs and four others before Mrs. Casey acquired it in October, 1930. Hensley proved a frequent use, continuously and uninterruptedly, from the beginning without asking anybody's permission and without being questioned or interfered with in any way.
There is evidence that some time between 1902 and 1910 one of the owners locked the gates, but under what circumstances and for how long this continued is not disclosed. In 1910 J.R. Eddins, Hensley's son-in-law, *310 bought the farm and owned it for nineteen years. His evidence is to the effect that Hensley's use of the road was regarded as one of right and not privilege. A neighbor testified that Hensley said one time during the two years between Eddins' ownership and Mrs. Casey's that he wanted him to help keep another old road open as "I am going to be shut up in here some day." Others bore witness to a somewhat similar statement. The appellant denied making the exact requests, and stated that he had talked about keeping open another road, which seems to have been practically abandoned, by having it used. Undoubtedly when and after Mrs. Casey purchased her farm she was told that this passway could be closed. Of course, the views given her by third persons could not affect Hensley's legal right. The passway was obvious and known to Mrs. Casey, and she took the property subject to whatever incumbrance it placed upon it. Ray v. Nally, 89 S.W. 486, 28 Ky. Law Rep. 421; Sparks v. Rogers, 97 S.W. 11, 29 Ky. Law Rep. 1170. She should have made inquiry of the user of the passway instead of her vendor or his agent. Wright v. Willis, 63 S.W. 991, 23 Ky. Law Rep. 565.
There are one or two other items of evidence which have as little probative force as those related. It was proved that Hensley made a statement one time that he had given $200 to his son-in-law to help build a house on the property, and that he (Eddins) wanted to make him a deed to the passway, but he told him not to do it because it would ruin the sale of the farm. This statement was denied. It is susceptible of two constructions. It certainly proves that Hensley's right to the passway was recognized by the owner of the servient estate about the year 1910. There were gates at each end of this passway and one or two in between, and, while their existence may be evidence of the fact that the use was permissive only, it is not conclusive of that fact, although it shows that the use is burdened by the right to maintain the gates. Brookshire v. Harp,
It is a familiar holding that there is a presumption of right acquired by prescription arising from the adverse, uninterrupted and continued use of a passway by the person asserting the right for as long as the statutory period of fifteen years, and the burden is on the owner of the servient estate to overcome that presumption. *311
Smith v. Pennington,
Wherefore the judgment is affirmed.
