This is a passway case. Its width is the only question involved on this appeal. Its existencе as appurtenant to the land of plaintiffs (appellees) is established bеyond doubt. The trial court held that the easement existed.
On this appeal the оwner of the servient estate (appellant) contends that' the lower court erred in' fixing the- width of the' pass-way at 18 feet, and insists that its- width should have been fixed no greater than 15 feet.
The evidence greatly preponderates that the pаssway for more than , a half-century was a wagon road, unfenced. Its use under clаim of right was by farm wagons. In the last few years motor trucks have been seen to pаss over the .road, but primarily, since its beginning, it has been a wagon road.
Bearing on the question of the width of the passway, we look to the evidence on that pоint. • Appellee, Lee Roy, testified that there were places on the passway where wagons could pass, but he did not know the width of the road. Leo Trimble sаid there was room for a truck to go over the road and the road was not much wider than the truck. Charles Reedy, a surveyor, said the road was about 15 feet wide. Jackson Burton said that a part of the road was 12 or 15 feet wide. Huey Trimble said the road was from 10 to 15 feet wide. George Burton said that the road before it was fixed was 7 or 8 feet wide, but that it is now 3 or 4 feet wider than the original road. Earl Harris said that the rоad was wide enough for a truck with a bed to pass on it, and his truck was about 8 feet wide.
The resumé of the evidencе with respect to the width of -the passway shows'that' the chancellor’s judgment is errоneous.
Before the adoption of the Kentucky Civil Rules we announced that “While it is the rule not to reverse the judgment of the chancellor on a mere matter of the credibility of the witnesses, or where under the evidence as a whole the truth of the matter involved is doubtful, it is also the rule that we will weigh and judge of the sufficiency of the evidence for ourselves, and, where it is found to preponderate fоr one side or the other in such a way as to convince us that the chancellor erred, his judgment will be reversed!” Faulkner v. Headrick’s Adm’r,
This case is being practicеd under the Civil Code of Practice, but even if it were being practiced under the new Kentucky Civil Rules our conclusion would be: the same because the finding of the chаncellor that the passway was 18 feet in width is without adequate evidentiary suppоrt and is clearly erroneous. CR 52.01.
It is the rule that where an easement is acquired.by prescription or use, as .here, such an easement exists only to the extent of the use. Baker v. Maggard, Ky.,
The judgment of the chancellor holding that the easement existed is affirmed, but that part of the judgment holding that the passway was 18 feet wide is reversed, with directions to enter judgment fixing the width of the- passway at 15 feet.