160 S.W.2d 644 | Ky. Ct. App. | 1942
Affirming.
Floyd and Sallie Burkhart instituted this proceeding to have Mr. and Mrs. George Roberts remove certain obstructions which they had placed in a passway through their farm and to have them permanently enjoined from impairing the passable and usable condition of the way. The land owned by the Robertses abuts Highway 80 in Laurel County and that of the Burkharts is some 300 yards back from the highway. The passway in question is used by the Burkharts in getting to the highway. The *137 Robertses denied the allegations as to the Burkharts' prescriptive right to use the passway, and after proof was taken they set up a claim to the way through adverse possession. The proof was taken before the chancellor on the Burkharts' motion for a temporary injunction and at the request of the Robertses the chancellor personally inspected the way and the adjacent premises. His opinion and order sustaining the temporary injunction sets forth further that he is personally acquainted with the parties and many of the witnesses who testified before him, and "from all of which he is convinced that the plaintiffs are entitled to the relief sought in their motion." The final judgment granted the Burkharts the relief prayed.
Formerly there was an old rail fence between the lands now owned by the Burkharts and the Robertses. The Roberts land was in woodland until some 30 or 35 years ago. It was then cleared and the rail fence was replaced with a wire fence. The proof shows that the passway in question had been used for many years. It was used by children going to and from school until the school was removed some 25 or 30 years ago, and by persons going to and from church, as well as those using it for other reasons. Travel was mostly on foot and horseback in the early days, with an occasional wagon passing along the way. The parties who owned the land before it was purchased by the Robertses bought the school building. For several years a mail carrier used the way going from the post office along his route. The old rail fence was let down by those who had occasion to go along the way with wagons, or on horseback, and a short time after the wire fence was erected on the division line the then owner of the Roberts land erected gates across the passway. There is proof, of course, that the way was used by the owners of the Roberts tract for their own convenience and that the gates were put there for that purpose. There is also proof that a few persons requested the right to use the way, as well as proof that a predecessor of the Burkharts asked permission to nail up the gate on the division line at one time to stop persons from passing over his property. There is proof on the other hand that the way had been used as a matter of right for many years and that its use was not by permission; and also, that it was not uncommon in this section of the state for passways to be fenced in the early days. The appellants contend that, if the public ever acquired *138 any right to use the way in going to the schoolhouse, when the school was discontinued and the property sold to the then owner of the Roberts tract and he fenced the pathway, that constituted an overt act of adverse possession, and that he and those claiming under him acquired title to the school path at the end of 15 years. They contend further that, when the Roberts land was cleared and fenced, the public was put on notice of the adverse holding of the owners. The point is made also that it was necessary for those using the way to let down fences or open gates, and therefore they were not using it without let or hindrance.
The case of Downing v. Benedict,
Wherefore, the judgment is affirmed.