49 S.W.2d 309 | Ky. Ct. App. | 1932
Affirming.
The paramount question presented by this appeal is one of fact. The appellant asserts a prescriptive right to a private passway on the land of the appellees, appurtenant to a tract of land on which he has a coal mine, situated on Duck fork of Sturgeon creek in Lee county, Ky. He charges that the appellees have interrupted and prevented, by wire, brush, and other obstructions, his use of the passway which he claims is necessary *506 for the delivery of the coal from his mine to his customers. The appellees deny both the existence and his right to the use of the road. The evidence is in the form of affidavits. The appellant filed ten, including his own, in support of the allegation of his petition. The appellees filed ten to sustain their contention. The affidavits offered by the appellant are in substantially the same language. Those offered by the appellees do not vary but slightly in phraseology. It is set forth in the affidavits in behalf of the appellant that the road on the appellees' land connects county roads, and has been continuously and adversely open and used by the general traveling public from thirty to fifty years. The road "runs up" the Smith branch. The boundary of land, on which it is claimed to have existed, is woodland. The affidavits in the behalf of the appellees say that it has not been used "except perhaps by all occasional hunter or moonshiner," and "at the pleasure of the owner of the land, by a few individuals; owned as a private haul way to take and haul logs, timber and coal from adjacent lands," and "was never used by the general public as a road or passway," and that "it has been impassable and could not be travelled by horses, wagons or vehicles," for more than the last fifteen.
The presumption of the grant of a passway over the land of another arises from fifteen years' continued use. This presumptive right in the one enjoying the use arises from such use, and the burden is on the owner of the land to show the use was merely permissive. Smith v. Pennington,
At last it may be said the evidence is conflicting, and therefore we are not authorized to interrupt the judgment of the chancellor. Gilbert v. Osenton,
Judgment affirmed.