95 Ky. 56 | Ky. Ct. App. | 1893
delivered the opinion oe the court.
The appellant brought his action of trespass against the appellee for removing the fences on appellant's land. The appellee justified upon the ground that the fences removed obstructed his right of way, and that they were only removed to the extent of removing the obstruction. The appellee claims a right of passway over .the appellant’s woodland. The appellant denies the right of pass-way, and claims that the use of the passway was by his permission only. So the question is: Yras the .passway over the appellant’s ivoodland by right or by permission only ? The lower court decided that it was by riglit, and the appellant has appealed. There is no proof that the right to pass over the appellant’s land was ever given by
Now let us see what the 'weight of the evidence establishes. It is, first, 'that the appellant has no other way to reach the Livermore public road, which leads to the county seat, than the way in controversy. Second, that it has been used for such purpose at least fifty years, and by the appellee at least twenty years. And third, that the pass-way has been all the time substantially at the same place, and all the time has had a well-defined road-bed. Fourth, that the way has been kept up by the appellee as his passway; that the changes in it are only such as resulted occasionally from the fall of a tree across the road-bed, or similar obstructions. These facts clearly create the presumption that the passway was used as a matter of right, and having been so used for fifteen years and more, the appellee’s right to its continued irse is established. If it be a fact that appellant wants to clear his ground and fence it up there is nothing in this opinion that precludes him from applying to the county court to discontinue the right of way established in this case, and have another right of way opened for the benefit of the appellee. In which case the court will take into consideration the equities of all parties, and act accordingly.
The judgment is affirmed.