188 Ky. 361 | Ky. Ct. App. | 1920
Opinion op the Court by
Affirming.
This is an appeal from a judgment of the Christian circuit court whereby the appellants, W C. and Alice M. Hunt, at the suit of the appellee, W. H. Sutton, were compelled by injunction to remove a gate from a passway running through their land and claimed as of right by the appellee, and perpetually restrained from erecting other gates across the same.
The appellee owns and resides upon a hundred acre tract of land in Christian county near Kelley, a station of the Louisville and Nashville Railroad Company and about a half mile from a turnpike running from Hopkinsville to Maclisonville. Kelley is appellee’s nearest railway station, likewise his voting place, and there is located the church attended hy himself and family and also the district common school attended hy his children. To reach Kelley, Hopkinsville, the county
The lands now owned by appellants and appellee were once parts of a large tract owned by one John Davis, who forty or fifty years ago by proper deeds then executed conveyed portions thereof to certain of his sons. To one of the sons, J. Webber Davis, was conveyed the tract now belonging to appellants. To another, Tom Davis, the tract now belonging to appellee, the conveyance to Tom being the first made. By successive sales and mesne conveyances the titles to the lands in question passed to and became vested in the present owners, respectively. When the land now owned by appellee was conveyed Tom Davis by his father, John Davis, the latter gave him the passway leading from the land over and through the land, then owned by him (John Davis) but later conveyed to J. Webber Davis and now the property of appellants, to the Hopkinsville and Madisonville turnpike. No mention of the passway was made in the deed from John Davis to Tom Davis, but though the grant thereof was by parol, it was undoubtedly made and the passwav then defined and established substantially as it now runs and has since continuously existed.
■It is alleged in the petition that the passway furnishes the only way of getting from and to the land and residence of appellee and that he and his vendors immediate and remote have had the free and uninterrupted possession, use and enjoyment thereof, as of right, adversely to appellants and all others for more than fifteen years before the institution of the action and, in fact, from and since the date of the deed from John Davis to Tom Davis, which was executed more than forty years ago; that at no time during such existence of the passway has there been any interference with appellee’s or any of his vendors’ use thereof, until shortly before the institution of this action, when the appellants, without right, maliciously and with the object of obstructing appellee’s use of the passway, erected a gate across the same which is unconnected with a fence on either side and can serve
Although the averments of the petition are traversed by the answer, considered as a whole the real defense it attempts to interpose is as to appellants’ alleged right to erect and maintain gates upon and across the pass-way in as great number and at such points as they may see proper to place them. Indeed, it is frankly admitted by their able counsel that appellee has established by the weight of the evidence a prescriptive right to the passway as claimed, but argued that such right in the latter is not inconsistent with that of appellants to erect gates across it for the convenient operation of their farm. Looking to the evidence we find that it overwhelmingly establishes the right of appellee to the pass-way as an easement, and that such right has existed in him and his vendors, for more than forty years, not merely by reason of his and their adverse user of the passway for more than the period required by the statute of limitations to bar the right of any owner of the servient estaté to now deprive him of it, but also because of the express recognition by the owner of the servient estate of such right in him and his' vendors during all the forty years of their enjoyment of it. We may, therefore, in entering upon the consideration of appellants’ claim of right to maintain gates upon the passway, assume that appellee’s right to the continued use of the passway by prescription is free of doubt.
This view of the case throws on appellants the burden of showing by a preponderance of the evidence that such right of appellee to the passway as an easement, has not deprived them, as owners of the servient estate, of the right to erect and maintain gates thereon. While the grant of a right of way, whether made by deed or arising by prescription from adverse user for the statutory period, does not necessarily imply that the owner of the land may not maintain gates thereon, in the absence of
“It has been held that the owner of the land may ordinarily erect gates where the passway enters and where it leaves his land. Maxwell v. McAtee, 9 B. Mon. 20, 48 Am. Dec. 409; Bland v. Smith, 23 Am. & Eng Ency. of Law 34. On the other hand, it has been held that, where the way is acquired by prescription and is used as a lane, free from gates durijig the period necessary for perfecting the title, none can be erected afterward. Fankboner v. Corder, 127 Ind. 164, 26 N. E. 766; Shivers v. Shivers, 32 N. J. Eq. 578. The passway in question was established in 1843. It has been used since that time as far as the witnesses can remember. Until recent years there was a fence on both sides of it, and no gate except where the passway began at Miller’s line. If the right to a passway may. be acquired by prescription, we can see no reason why a passway free from gates may not be acquired in like manner; and where the passway is fenced off as a lane, and is used as such for thirty or forty years, it must be presumed after such a great length of time, when the parties are all dead, that the persons using the passway were the owners of a right of way, as they held it and used it. On the facts shown, the court should have required the defendant to remove the gate at the pike from the passway, and to take the poles out of the branch. He should also adjudge the plaintiff $50.00 as reasonable compensation for the obstruction of her way.”
If the appellants had only attempted to erect gates at the termini of the passway (i. e., where it enters and leaves their land), we might have here had a different question to deal with. But ihe points selected for erecting them are elsewhere than the termini and at places where they would materially interfere with appellee’s proper enjoyment of the pass way. In Evans v. Cook, 33 R. 788, another ease cited with approval in Raisor v.
When appellants purchased their land, the passway ran through it unobstructed by gates; and when appelleepurchased his land, it was with knowledge of the existence of the passway through appellants’ land and with the right to enjoy its use as then conditioned. It is our conclusion that appellants have no right to obstruct the passway with gates as done and threatened. Wherefore the judgment is affirmed.