178 Ky. 849 | Ky. Ct. App. | 1918
Opinion op the Court by
Affirming.
The appellee, Carr, owns and lives upon a farm of fifty-three acres, which is cut off from a public road by .a small strip, about 175 yards wide, of land owned by appellant over which Carr traveled in going to and from his farm to the county road until recently, when Skaggs built a fence across the passway. Claiming the right -to use the passway over Skaggs’ land both by prescription and as an appurtenance to his land, Carr instituted this action for a mandatory injunction requiring Skaggs to remove the fence and leave unobstructed the pass-way which, upon trial, was granted by the chancellor; and Skaggs appeals.
With the testimony submitted is the following stipulation :
“To avoid the trouble and expense of taking the proof showing the facts herein agreed upon, it is therefore agreed between the parties hereto; that the tract ■of land belonging to the plaintiff and the tract belonging to the defendant were once parts of the samé common boundary of land and belonged to the same owner, wh<5,*850 at a date sold the Skaggs tract to Skaggs’ remote vendor, and afterwards the same common vendor of the same common boundary sold the Carr tract to Carr’s remote vendor. And at the time of the sale of the Skaggs tract there was a haulway leading up from the county road to and upon the remainder of the original tract of land. And at the time of the sale of the Carr tract to Carr’s remote vendor and also immediate vendor the same haulway existed over the Skaggs boundary which was then laying out to the commons unfenced. And that there was no reservation made in any of the deeds from any of Skaggs ’ vendors, either immediate or remote, appertaining to said haulway in any of the deeds in the chain of title held by Carr. It is agreed by the parties on the trial of this case that the above stipulation of facts may be read and considered as part of the proof of this action. ’ ’
The evidence shows further most conclusively that there is not now and never has been any other passway leading to or from Carr’s land to a public road, except foot or bridle paths now and for some time closed; and that this passway is now and has been, for at least forty years, plainly visible in nearly, if not exactly, the same place upon the land, which period covers the time when the common boundary mentioned in the stipulation was divided and sold as well as the times when both- appellant and appellee acquired their respective portions of same.
Under these facts, by a long established rule of the common law frequently approved by this court, the pass-way over appellant’s land is an implied easement appurtenant to the lands of appellee. See Muir v. Cox,, 110 Ky. 564; Mitchell v. Pratt, 177 Ky. 438; Henry v. Koch, 80 Ky. 391; Lebus v. Boston, 107 Ky. 98; Irvin v. McReary, 108 Ky. 495; O’Daniel v. Baxter, 112 Ky. 331; Stone v. Burkhead, 160 Ky. 47; Thomas v. Bertram, 4 Bush 317.
Nor does the fact that some years ago, when appellant desired to fence his land, appellee, at his request,, placed bars and later a gate across the passway in the line fence affect the easement, as this was entirely consistent with and permitted the exercise by both parties of their respective rights in the land. Maxwell v. McAtee, 9 B. Mon. 20; Bland v. Smith, 66 S. W. 181; Gibson v. Porter, 15 S. W. 871.
Appellee having established his right to the passway as an appurtenance to his land, it is not necessary to consider his claim by prescription, nor to discuss the authorities cited by appellant’s counsel which refer only to that question.
Judgment affirmed.