312 Ky. 474 | Ky. Ct. App. | 1950
Affirming in part, reversing in part.
This suit was brought in equity by appellee against George T. Smith and Francis S. Smith, appellants, asking that they be enjoined from maintaining a gate across a roadway; that they be required to remove said gate therefrom; that they he enjoined from obstructing said road or in anywise interfering with the use of said roadway by appellee, his family, his visitors, his tenants and employees. The roadway in question passes through part of the land of appellant, George T. Smith, and appellee claims the 'right to use said roadway from his home to State Highway No. 11 by prescriptive right..
On motion of appellants the ease was transferred to the ordinary side of the docket and the issue, as to whether or not appellee and the public generally had used the said roadway continuously and as a matter of right for more than fifteen years, was submitted to the jury under two instructions not complained of. The jury brought in a verdict for the plaintiff thus deciding by its verdict that appellee had established its prescriptive right to the use of said roadway across appellant’s land. That was the only question submitted to the jury and the only question decided by it. We have read and carefully considered the evidence on this phase of the question and without detailing it we are of the opinion that the verdict of the jury is sustained by the evidence which shows use of the passway by appellee for more than 15 years and that it was not merely permissive use.
However, the judgment of the court goes beyond the verdict of the jury, which merely determined the right of appellee to the use of the roadway. It perpetually enjoined appellants from maintaining a gate across the roadway in controversy where it intersects State Highway No. 11 and required appellants to remove the gate which had been erected at that point of intersection by them. Although it is not clearly shown in the record, we will treat the reference to the jury on the issue of fact, which they decided, as an issue out of chancery, and, then, that the Chancellor again took over the case and, as such, issued the injunction requiring appellants to remove the outside gate and enjoining them from maintaining such gate in the future.
We do not believe the evidence justified the judgment of the Chancellor on this phase of the case. The tract belonging to appellant, through which that part of the passway in controversy- runs,- extends from State Highway No. 11 westwardly a distance of about 1200 feet- to appellee’s property line and contains about-80
Appellant as the owner of the property in fee is entitled to use it in a lawful manner, as in this case, to pasture his livestock. But in doing this as the owner of the servient estate, he cannot destroy or unduly obstruct the rights of the dominant estate created by the ..easement over his property. The servient owner must permit fhe free and unrestricted use of the passway by the owner of the dominant estate while the latter must use his rights so as to be as little burdensome as possible to the servient estate. Sandman v. Highland, 312 Ky. 128, 226 S. W. 2d 766, and cases therein cited. We have held that the owner of a servient estate may erect gates across a passway provided they are so located or' constructed as not to unreasonably interfere with the right
So much of the judgment as holds that appellee has the right to the use of the passway from his home to State Highway No. 11 is affirmed. So much of the judgment as enjoins appellant from maintaining a gate at the, intersection of said Highway and requiring removal of said gate is reversed with directions to enter one in accordance herewith.