88 Ky. 185 | Ky. Ct. App. | 1889
delivered the opinion op the court.
This controversy between the appellant and the appellee, arises from the nse, by the appellant and those under whom he claims, of a private passway \ the ap-, pellant alleging that its use has been obstructed by the appellee by placing logs and constructing water-gaps across the way that prevents travel upon it. The chancellor is asked to have the obstruction removed that the appellant may exercise his right of passage over it. It is alleged that this passway has been used by the public and by the owners of the farm on which the appellant resides, under a claim of right, for more than half a century; that the use has been constant and continued by the vendors of the appellant and the appellant during that entire period, and is the only way from the farm of the plaintiff to the public highways and turnpikes leading to his county seat. That this private way is appurtenant to his farm, and was at no time obstructed until the wrongful act of the plaintiff complained of,, which occurred shortly before the bringing of this suit.
The appellee admits the use, but insists that it was only permissive ;' that the passway used was up Hardin’s creek, and in building fences on either side of the creek, the owners of the land could not erect them near the water’s edge, on account of high water, and this left a space of from fifty to one hundred yards between the fences on each side, and this space had been used by the public for many years, not under a claim of right, but by mere permission, the road being ■changed from time to time in the space mentioned, by the change in the channel of the creek or by reason
A man by the name of Beauchamp owned the land of which both the tracts owned by the appellee and appellant are composed, and when he owned it, which was in the year 1820, this passway was used by the public and by himself, as a passway to the county seat. Mills, Hayden and Thompson, who were near eighty-six years of age when they testified, say that this way in dispute was located on or near the branch when they were boys, and the land fenced on either side; that it was used as a passway from this land and by the neighborhood before Marion county was formed. Beauchamp sold this land in the year 1820, to William Russell and William Mudd, Russell purchasing the one tract and Mudd the other. The two farms adjoin and border on the creek, and divers witnesses, all of whom are uncontradicted, say that this passway has been used by these farms during the entire period ; some of them, being old men, state that its use extends as far back as they can recollect, and has
It is argued that there was never any assertion of right by those who traveled over this passway, but such as consisted in its use, and it must, therefore, be presumed the use was merely permissive. We can not concur in such a conclusion. When appellant purchased this land, the passway from the farm to the county seat was plain and unmistakable, and when appellee purchased his farm, it was equally as manifest, and there was no reason for inquiring as to the duration of the time the passway had been used. It was the only passway, and while its use for a less time than fifteen years conferred no right, the appellant could, at his peril, rely upon its use for so long a period as to make it appurtenant to his farm and as vesting in him the right of way.
At common law the long enjoyment of an easement gave the right to the easement, and the use continuing uninterrupted for twenty years or longer, when unexplained, created the presumption that the claim or use was adverse. Under our statute of limitation, the continued use for fifteen years unexplained would create the presumption as to the right, and in this case the use for more than half a century certainly establishes the right to the passway ; and it was not necessary to show,, by positive testimony, that the- appellant had claimed this use as a matter of right, and so proclaimed to his neighbors. The burden was, in fact, on the defendant (appellee) after such a long use of his premises, to show that the use was merely permissive.
The necessity for this passway from the farm of the appellant, and its constant use for so long a time by its occupants, undisturbed until a few years since, is convincing that the appellant and his vendors claimed the right to use this passway as their own even against the wishes of the appellee. It followed the land and was indispensable as an outlet to the enjoyment of the premises, and having been used from time immemorial, the grant to the use should be implied.
The judgment below is reversed and remanded with directions to require the appellee to remove the obstructions, and for proceedings consistent with this opinion. (Thomas v. Bertram, 4 Bush, 317.)