183 Ky. 780 | Ky. Ct. App. | 1919
Reversing.
Edward Morin died 'in 1878 or 1879, the owner of 370% acres of land on the Flag Spring and Alexandria turnpike, in Campbell county. He left surviving him three children and seven grandchildren by a fourth child. Shortly after his death a suit was instituted in the Campbell circuit court for a division of the lands into four parts, in kind, among the three children and grandchildren, and the master commissioner was appointed whoi made a report in writing accompanied by a plat, to the court subdividing the 370% acres into four tracts. In making this division, lots Nos. 1 and 2 fronted on the turnpike, and lot No. 4 was directly behind lots Nos. 1 and 2, and 203 poles away from the pike.
The report of the commissioner, after describing tract No. 4, adds this: “The whole lot No. 4, being 157 acres and 11 poles. There is to be a road used as an outlet from lot No. 4, as represented on the plat, along the division line between lots Nos. 1 and 2, whose bearing is N. 09% E.; said road is to be 20 feet in width, beginning at a stone in the northeast line of lot 4, second corner to lot No. 1, and fourth corner to lot No. 2; thence running with said division line a distance of 203 poles to the Flag Spring and Alexandria turnpike, 10 feet being granted on each side of the division line.
“All of which is respectfully reported.”
This report appears to have been duly lodged by the commissioner with the papers of the case, and filed by the clerk and made a part of the record in the case, and confirmed by the court, but never recorded in the manner provided by law. No copy of the judgment in the partition suit, or deeds made by the commissioner to the heirs, is made part of this record. So far as this record shows the judgment did not follow the report of the commissioner with respect to the roadway contained in the report copied above nor did either of the deeds made by commissioner contain any reference to said road or pass-way.
Immediately after the division was made, the parties to whom the tracts were allotted took actual possession and enclosed the tracts by fencing and placed other improvements on the land. There was no roadway or traveled way along the line described in the report at the time the report was made, the judgment entered and
It would,- therefore, appear that appellee Daniel rests his claim of right to the roadway solely and alone upon the provisions and description set forth by the commissioner who divided the land in his report to the Camp
It is well settled that where a right to a roadway is vested by grant or judgment, in partition proceedings, all subsequent purchasers who hold under the grant or judgment, are bound by the road reservation, and the servient estate can not avoid the burden by pleading and proof of non-user of the easement acquired by the grant, or in any manner, except by adverse holding for the statutory period. In the case of Johnson v. Clark, et al., 57 S. W. (Ky.) 474, this court held that non-user of a passway acquired by grant does not destroy the easement in the absence of any act on the part of the owner of the servient estate which is inconsistent with the existence of the easement; and the acquiescence by the owner of the easement in temporary changes in the passway from one route to another for the convenience of the owner of the servient estate, does not operate as an abandonment of the original way granted. See also Dodson v. Meritt, 141 Ky. 155; Speers v. Weddington, 146 Ky. 434; N. P. B. & S. Co. v. Plummer, 149 Ky. 534; List v. Jacoby, 22 R. 757; Boyd v. Morris, 32 R. 645.
It, therefore, appears that nothing less than an adverse and hostile use of the servient estate, wholly inconsistent with the right of the owner of the easement, will start the statute of limitation running, which, when the period has elapsed will extinguish the right. Certainly nothing short of the continued adverse use for the statutory period will establish a right by prescription in the adverse claimant.
Appellants and those under and through whom they claim have owned, held and claimed the land over which the roadway is proposed, adversely, continuously and uninterruptedly for many years and much more than fifteen years next before the commencement of_ this action. Had the roadway been once actually established along the route in question, appellees and their predecessors would not have lost their right therein by mere non-user, but since no roadway was actually- estab
But did Margaret Morin, to whom was allotted lot No. 4, in the division of her father.’s estate, acquire an easement in the roadway in controversy in this action by the mere filing of the commissioner’s report of partition, which designated and described the passway? We think not. If the report had been confirmed by the court and recorded in the proper office, no doubt it would have become a link in the chain of .title which would have impressed itself upon the muniments thereof, in such way as to have given notice to all subsequent holders of the servient estate that the right to the road existed and5 was an encumbrance thereon, which right could not have been defeated except by an adverse user or holding for the statutory period. But so far as this record shows the court did not confirm and cause to be recorded the report of the commissioner. It would appear that the court rejected the report in so far as it designated a road from lot No. 4, over lots Nos. 1 and 2 to the pike, because the judgment so far as this record shows did hot describe the passway, refer to it or even mention a passway.
Neither did the deeds made by the commissioner of the court, pursuant to the judgment mentioned, describe or give to the grantee of lot No. 4 any right of way or easement in a roadway over lots Nos. 1 and 2. Hence, we conclude that the court rejected at least so much of the report of the commissioner as recommended a pass-way from lot No. 4, over lots Nos. 1 and 2 to the pike, because if the judgment had adopted the report it would have followed the same in the establishment of the road, and some mention would have been made thereof in the judgment, and the deeds of the commissioner, following the judgment, would also have mentioned and described the right of way. A report of commissioners filed in a suit is only the recommendation or suggestion of the commissioner which the court may or may not accept and confirm. Often the report is wholly rejected or disregarded; sometimes only partly adopted. This report
We therefore conclude! that the trial c®urt erred to the prejudice of appellants in sustaining the prayer of the petition, granting the mandatory injunction against the present owners of*lot No. 1 requiring them to remove the obstructions from the alleged passway, and perpetually enjoining them from obstructing the same in the future. Upon the record, the judgment should have been for appellants, and the petition dismissed.
Judgment reversed for proceedings consistent with this opinion.