| Ky. Ct. App. | May 19, 1922
Opinion op the Court by
Affirming.
This suit was brought in the Gallatin circuit court to enjoin the interference with the use of a passway on the land of appellees. The action is based on continued use under claim of right for more than fifteen years. The appellees are defending on the ground that the use has been permissive.
The evidence is voluminous. It is directed not only at the manner of the use but also to the availability of other outlets from appellants’ property. The litigants own adjoining farms. The passway extends from appellants’ farm across the land of the appellees to what is designated in the record as the new cnt road. It is well defined and the evidence for appellants tends to show that it has been used continuously by them and their predecessors since 1881. They also claim that the use has been adverse. Appellees admit the use for a long period of time hut contend that it has been permissive. There are several gates across the passway, one of which is at the entrance on the line between the two farms. The case turns on the question as to whether the use has been adverse or permissive. Many authorities are cited by counsel on either side. In none of them is there diversity of opinion as to the general rule in force in this jurisdiction, though upon the facts in the various cases relied on its application has resulted in different conclusions.
The right to a passway by prescription is founded on the presumption of a grant and can only arise from the ad
In addition to these principles it should also be remembered, as pointed out in the Fightmaster case, supra, that the permissive use of a passway for any number of years does not deprive the owner of the servient estate of the right to close it at any time, and, if the use was originally acquired by permission, its continued use will be regarded as permissive until something is done to bring notice to the owner of the land that the character of the use has been changed.
The trial court decided that the asserted right of appellants was permissive and not prescriptive. The record discloses circumstances tending to establish the contentions of both parties. It is shown, as we have stated, that the way is well defined and the appellants and their predecessors in the ownership of their farm have used it since 1881; also that there are several gates across it, and while appellants have facilities for reaching the public road they are not so convenient or easily traveled as the way in dispute. Appellant, T. C. Childers, inherited the farm on which he and his wife live from his father. W. W. Roswell was the owner of the fee to the 231 acre tract over a part of which the passway crosses. In 1879 he conveyed the 231 acres of land to Mary Roswell for
Appellants acquired title to their land only a few years ago, but T. C. Childers had nsed the passway before his marriage and while living with his father. He testified that he and his father had assisted in repairing the road on several occasions, that he helped repair one of the gates and had furnished some nails for that purpose. In 1899 at the close of a heated gubernatorial .campaign two neighbors, of the opposite political affiliation to Mrs. Roswell, made some remarks while passing along the pass-way at which Mrs. Roswell became incensed, and she then locked the gates and refused to permit them again to use the road. In coming back through her farm they were not permitted to open the gates but they let down a rail fence and passed through. The evidence .does not show whether they again attempted to use the pass-way but it does show that the gates remained locked for several months and that when T. C. Childers or his father desired to pass through they were required to go to the house, get the keys and unlock the gates. Shortly after this incident Mrs. Roswell had a conversation with appellant, T. C. Childers, the effect of which as related by him was that other people could use the passway but the neighbors who had offended her should not. He said that at that time he told her that he doubted her right to lock the gates and she replied that she herSelf was not certain as to her rights in that respect. This conversation, however, she denied. 'It also appears in the proof that during the years the passway was being used she would not permit its use for heavy hauling in muddy weather and it is shown that Furnish, who lived on the farm, informed one witness who desired to use it for hauling that Mrs. Roswell would not permit hauling when it was muddy.
When appelles purchased the property a conversation was had between them and appellants in which appellants manifested some uneasiness as to appellees ’ purposes in dealing with the way, and at which time, according to appellees, the right to its use. was not claimed. Appellants say that they did make the claim, but the origin of the conversation does not bear out their .statements but rather indicates a recognition of the right of appellees to close the way-.
In the Grodman case, supra, it was said:
“It is not an uncommon thing for persons who have enjoyed the permissive use of an easement for a long period to indulge the hope, which eventually ripens into a belief, that the use has been hostile and under a claim of right. This is so especially true where the owner of the servient estate is lenient in his requirements, that it may be said the greater the accommodation the greater the danger. ’ ’
. Mrs. Roswell was undoubtedly a neighborly woman and it is not difficult to trace this litigation to her leniency ■ and desire to accommodate her neighbors. While the erection and maintenance of gates on the servient estate is not inconsistent with the acquisition of an easement (Skaggs v. Cary, 178 Ky. 849" court="Ky. Ct. App." date_filed="1918-01-29" href="https://app.midpage.ai/document/skaggs-v-carr-7144662?utm_source=webapp" opinion_id="7144662">178 Ky. 849), it is a circumstance tending to support the claim of appellees, and the locking of the gates without objection on the part of the father of T. C. Childers is an indication of his attitude towards the right that is now being asserted by appellants. These circumstances with many others shown in the record as well as the testimony of Mrs. Roswell are ample to rebut the presumption, arising from the long continued use. On the other hand there are circumstances that support the presumption, among which is the assistance given by T.
(On the evidence, the case is one that addresses itself to the judgment of the chancellor. There is sufficient evidence in the record to sustain a favorable adjudication of either contention, and, while it must be recognized that the continued use of the passway for a long period of time casts the burden on appellees to show that the use was permissive, we are not prepared to say that their evidence does not meet the requirements. The chancellor, who presumably knew many of the witnesses, considered the appellees’ evidence adequate. His finding of fact, if not flagrantly against the evidence, is entitled to decisive effect and we can not say that it is flagrantly against the preponderance of the evidence.
The judgment is not open to attack, as contended by appellants, on the ground that it is not supported by the pleadings. The claim of appellants is founded on adverse usé, and the petition alleges that they and those under whom they claim have used the passway openly, notoriously, continuously and adversely for more than thirty years. The attempted denial of this allegation is in the conjunctive instead of the disjunctive. The denial is not good and if standing alone would be held to present no defense. But appellees affirmatively averred that the use of the passway by appellants and those under whom they claim had at all times been permissive only and not 'at any time adverse. These averments were traversed, making the issue on which the case was tried, i. e., whether the use of the way was under claim of right or permissive. In this situation appellants are not entitled to a judgment on the pleadings.
From an examination of the record we are unable to find any errors prejudicial to appellants. We are, therefore, of opinion that the judgment should be affirmed and it is so ordered.