187 Ky. 384 | Ky. Ct. App. | 1920
Opinion op tiie Court, by
Affirming.
The accompanying map will, to some extent, illustrate the controversy between Warren Flener, appellant, and Grover Lawrence, appellee, arising from a contention by
The presumption, which the continuous use of a pass-way over enclosed lands for the period necessary to create title, to the effect that the use will be presumed-to be adverse and will east the burden upon the owners of the servient estate 'to prove that the use was permissive, does not arise, when the way is over unenclosed lands, blit, in the latter instance, the claimant of the passway, may prove that the use of it was under a claim of right and adverse, although the burden is upon him to do so, and when he has done so, the proof of open, continuous,
To establish a private right of wajr by prescription, the line of the travelled route, must be definite, and must not be so changed about from time to time, as to indicate, that the use of the way was merely permissive. The evidence is very contradictory as 'to whether the right of way, in the instant case, has followed a definite line of road during the many years of its use, but, the weight of the evidence is to the effect, that the line of 'the road, over which the right of way is claimed, is, substantially, the'same as it was at the beginning, as there are several witnesses, who resided at the house, indicated by the letter, 0, and used the passway, who state, that 'there had been no material deviations in its course since eighteen or twenty years before this action was commenced, and if changes had occurred in it before that time, the period of uninterrupted use, since, had been sufficient to ripen the title to the road, as now located in the vendors of the appellant. Deviations to avoid obstructions, such as fallen trees, m.ud holes and similar obstacles, do not affect the right to the easement. Talbott v. Thorn, supra; Everdridge v. Alexander, 75 Ga. 858. If appellees, by filling up the road bed, or placing their fence in it, have forced the persons, travelling the road, to make another way upon the bank of the road, or to deviate from the original road bed, they can not rely upon those circumstances to defealt the right to the easement, if the road is substantially where it has been during the statutory period necessary to create title, and
Hence, it is concluded, that the appellant as the owner of the farm formerly owned by Virgil Flener, has an easement of a right of way along the route from P to E, and the right to travel over, and use same, to the public highway, and the right to such use of the passway, as has, heretofore, been customarily done by the persons, who have resided upon the farm. But, the appellees do not owe him any duty to repair the road, as that is a matter, which he is due to do himself, if he would have the road repaired; but the appellees may not obstruct the road. The county court, upon application and the proper cause shown, may- change the right of way, and locate it at another place, if the equities of the .parties justify it. Hansford v. Berry, supra.
The appellees can not be required to enclose the pass-way by fences upon either side, nor cían the appellant do so without the consent of the appellees, and neither can he erect gates upon it without their consent, but the appellees may erect gates over the passway, if the location and construction of the gates do not unreasonably interfere with passage over the way. The right to an easement by prescription is founded upon a fiction of the law, that a grant was made, but has been lost, and hence, the rightdo erect gates over the right of way, is determined by the terms of the- grant. If a grant expressly provides, 'that the way shall be an open one, it is clear, that gates may not be put across it, nor does a grant of a way without any reservation of the right to put gates across it, imply, that the owner of 'the land may not do so. Maxwell v. McAtee, 9 B. M. 20. The rule as stated in 14 Cyc. 1212, is: ‘‘Ilnless it Is expressly stipulated that the way shall be an open one, or it appears from the terms of the grant or the circumstances of the case, that such was the intention of 'the parties, the owner of the servient estate, may erect gates across the way, provided they are so located and constructed as not unreasonably to interfere with the right of passage. ’ ’ The grant, in this case, being across unenclosed woodland, at the time, it was made, it can not be assumed, that the parties intended, that when the owner should desire to improve and clear the woodlands for cultivation, that he
■ The fact, 'that the way, O, S, H, furnished adequate facilities for egress and ingress from the public highway to appellant’s farm, will not defeat the appellant’s right to an easement over the lands of appellees from P to E as the latter way is not one of necessity, which must cease, when the necessity is a/t an end, but is founded upon a grant; nor does the offer of a right of way along the line from K to G constitute a defense. The appellees’ right to the easement from P to E, will continue until changed by order of the county court, as provided by law.
The judgment appealed from does not ■ state upon what particular ground, the court denied the reliet sought by appellant, and, hence, we can only assume, that the coui'f found, that the road claimed by appellant, was not obstructed at the institution of the suit, except by the gates, placed across it, and the appellees being within their rights in the maintenance of the gates the complaints of appellant were without merit. The judgment of the cancellor upon contradictory evidence as to the obstructions in the way, will not be disturbed.
The judgment is therefore affirmed.