Finney v. Deweese

| Ky. Ct. App. | Oct 17, 1952

CAMMACK; Chief Justice.

This appeal is from a judgment holding that Mr. and Mrs. Clarence Deweese had a prescriptive right tO' a roadway across the land of Miss Bessie Finney. It is Miss Finney’s contention that the Deweeses are entitled only to a permissive use of the roadway. The evidence established that the roadway has been used by the appel-lees and their predecessors in title for over 50 years. In support of her contention that the use of the roadway was permissive, Miss Finney and her sister testified that, about 1926, their mother had given members of the Deweese family permission to use it. The appellees denied that any permission had been given to use the way.

As said in Haynes v. Dennis, 308 Ky. 483, 214 S.W.2d 1005, there is a presumption of a grant of a right of way by prescription following an uninterrupted, unexplained, adverse use of the way, and it is incumbent on the landowner to show that the use was merely permissive. Under such circumstances the party claiming the prescriptive right may sustain his claim by the introduction of only slight evidence. In the case before us there was sharp contradiction in the testimony as to the permissive use of the way, even after 1926. Under the circumstances, we think the case falls clearly within the rule expressed in the Haynes case.

Judgment affirmed.