184 Ky. 674 | Ky. Ct. App. | 1919
Opinion op the Court by
Affirming.
Claiming a prescriptive right to a passway over the lands of appellant, Eugene Daniel, S. P. Shaver, instituted this action for a mandatory injunction against Daniel to require him to remove an obstruction which he placed across the passway in question, and to recover $250.00 damages. Daniel owns a farm lying on both sides: of the turnpike. Adjoining this farm Shaver owns two adjoining tracts which together contain about thirty acres, but Shaver’s tract lies away from any road or passway except the one in controversy. A part of Daniel’s land lies between Shaver’s land and the. pike-All this land was formerly owned by Thomas Daniel, but he divided it and sold it off in small tracts, and after passing through different hands Shaver became the owner of the two small tracts known as the Ackerman land and Eugene Daniel, a grandson of Thomas Daniel, owns the old Daniel homestead and occupies the same house in which his grandfather lived.
The passway in question is about 264 feet long and extends from Shaver’s line over the land of Daniel to the pike. It was first established about 1861 or 1862, when Ackerman purchased the lands from old man Thomas Daniel. Cates were maintained at each end of the passway;' one at the pike and one at the Ackerman line. There was no fencing on either side of the pass-
On the other hand Daniel and his witnesses say that the passway was closed up from 1901 to 1902; that no one lived in the Ackerman house and no one traveled over the passway. They also state that the use of the passway was interrupted at different times while Ackerman lived there, but this evidence is all very indefinite, vague and uncertain. If, as claimed by Shaver, Ackerman held and used the passway for as much as the statutory period from 1861, when he first entered, his right to the passway by prescription was fully established and was not lost by any attempted interruption by old man Thomas Daniel, or any of his successors in title, by closing the passway for a few days or for a year or so. Once a passway is acquired by prescription the right 'continues, though not used, indefinitely, and the prescriptive owner does not lose his right to the passway unless it be adversely held by another for the period prescribed by the statute. Title, by prescription is as strong ' as title by grant or deed; and it is not lost by failure to -use or by adverse possession for any term less than the - statutory period, fifteen years. In 9 R. C. L. 812, it. is said
The rule is that where a passway has been used for a long term of years and the statutory period has elapsed, the presumption is that the use was by grant and as a matter of right and hostile to the owner of the servient estate; and if the owner of the servient estate asserts that the use was by permission, the burden is upon him to establish this fact. In the case of Lyles v. Graves, 147 Ky. 809, in considering a question very similar to the one here, we said: ‘ The doctrine that where the use of a passway has extended over a long period of years, very slight evidence will'be sufficient to show that it was enjoyed under a claim of right, and when a pro
Applying this rule to the facts before us, Shaver having established the use of the passway by himself and his predecessors in title for fifty-four years before the commencement of this action, the burden was upon Daniel, the owner of the servient estate, to show that the use of the passway was by permission and not by claim of right on the part of Ackerman and his grantees. While there is some evidence for Daniel tending- to show that the use was permissive, it was not sufficient to overcome the presumption in favor of Shaver and his predecessors in title that the use was as a matter of right. Indeed, we think the preponderance of the evidence upon the whole ease is to the effect that Ackerman claimed and used the passway as a right appurtenant to his lands.
The mere fact that there was another passway from the pike to the small tract of land purchased by Ackerman from old man Thomas Daniel, after the establishment and use of the pas sway in controversy, did not militate against the right of Ackerman and his successors in title to claim and use the passway from his house to the pike. Proin the evidence in this case we learn that the house and passway in controversy are on an elevation, while the second passway spoken of is in a valley or at the foot of a slope. This second passway was granted by Daniel in connection, with a second purchase of land by Ackerman and long after Ackerman began claiming and using- the passway in front of his house.
The chancellor having found the fact that the use of the passway by Shaver and his predecessors in title was as a matter of right and not by permission, and upon this finding, adjudged appellee Shaver entitled to the use of the passway, and granted a perpetual injunction restraining Daniel from obstructing the passway and awarded Shaver nominal damages, we would not be justified in reversing the judgment, unless the finding- of fact by the chancellor was against the weight of the evidence,
'Judgment affirmed.